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453 U.S. 420 101 S.Ct. 2841 69 L.Ed.2d 744 Jeffrey Richard ROBBINS, Petitioner,v.State of CALIFORNIA. No. 80-148. Argued April 27, 1981. Decided July 1, 1981. Rehearing Denied Sept. 23, 1981. See 453 U.S. 950, 102 S.Ct. 26. Syllabus When California Highway Patrol officer stopped petitioner's station wagon for proceeding erratically, they smelled marihuana smoke as he opened the car door. In the ensuing search of the car, the officers found in the luggage compartment two packages wrapped in green opaque plastic. They then unwrapped the packages, both of which contained bricks of marihuana. Petitioner was charged with various drug offenses, and, after his pretrial motion to suppress the evidence found when the packages were unwrapped was denied, he was convicted. The California Court of Appeal affirmed, holding that the warrantless opening of the packages was constitutionally permissible since any experienced observer could reasonably have inferred from the appearance of the packages that they contained bricks of marihuana. Held : The judgment is reversed. Pp. 423-429; 429-436. 103 Cal.App.3d 34, 162 Cal.Rptr. 780, reversed. Justice STEWART, joined by Justice BRENNAN, Justice WHITE, and Justice MARSHALL, concluded that the opening of the packages without a search warrant violated the Fourth and Fourteenth Amendments. Pp. 423-429. 1 (a) A closed piece of luggage found in a lawfully searched car is constitutionally protected to the same extent as are closed pieces of luggage found anywhere else. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538; Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235. Pp. 423-425. 2 (b) With respect to the constitutional protection to which a closed container found in the lawful search of an automobile is entitled, there is no distinction between containers, such as suitcases, commonly used to transport "personal effects," i. e., property worn on or carried about the person or having some intimate relation to the person, and flimsier containers, such as cardboard boxes and plastic bags. Such a distinction has no basis in the language or meaning of the Fourth Amendment, which protects people and their effects, and protects those effects whether they are "personal" or "impersonal." And there are no objective criteria by which such a distinction could be made. Pp. 425-427. 3 (c) Unless a closed container found in an automobile is such that its contents may be said to be in plain view, those contents are fully protected by the Fourth Amendment. Here, the evidence was insufficient to justify an exception to the rule on the ground that the contents of the packages in question could be inferred from their outward appearance. To fall within such exception, a container must so clearly announce its contents, whether by its distinctive configuration, transparency, or otherwise, that its contents are obvious to the observer. Pp. 427-428. 4 Justice POWELL concluded that petitioner had a reasonable expectation of privacy in the opaquely wrapped and sealed package in question. The Fourth Amendment requires a police officer to obtain a warrant before searching a container that customarily serves as a repository for personal effects or when, as here, the circumstances indicate that the defendant has a reasonable expectation that the contents will not be open to public scrutiny. Pp. 429-436. 5 Marshall W. Krause, Larkspur, Cal., for petitioner. 6 Ronald E. Niver, San Francisco, Cal., for respondents. 7 Andrew L. Frey, Washington, D. C., for U. S., as amicus curiae, by special leave of Court. 8 Justice STEWART announced the judgment of the Court and delivered an opinion, in which Justice BRENNAN, Justice WHITE, and Justice MARSHALL joined. 9 * On the early morning of January 5, 1975, California Highway Patrol officers stopped the petitioner's car—a 1966 Chevrolet station wagon—because he had been driving erratically. He got out of his vehicle and walked towards the patrol car. When one of the officers asked him for his driver's license and the station wagon's registration, he fumbled with his wallet. When the petitioner opened the car door to get out the registration, the officers smelled marihuana smoke. One of the officers patted down the petitioner, and discovered a vial of liquid. The officer then searched the passenger compartment of the car, and found marihuana as well as equipment for using it. 10 After putting the petitioner in the patrol car, the officers opened the tailgate of the station wagon, located a handle set flush in the deck, and lifted it up to uncover a recessed luggage compartment. In the compartment were a totebag and two packages wrapped in green opaque plastic.1 The police unwrapped the packages; each one contained 15 pounds of marihuana. 11 The petitioner was charged with various drug offenses, his pretrial motion to suppress the evidence found when the packages were unwrapped was denied, and a jury convicted him. In an unpublished opinion, the California Court of Appeal affirmed the judgment in all relevant respects. This Court granted a writ of certiorari, vacated the Court of Appeal's judgment, and remanded the case for further consideration in light of Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235. 443 U.S. 903, 99 S.Ct. 3093, 61 L.Ed.2d 870. On remand, the Court of Appeal again found the warrantless opening of the packages constitutionally permissible, since the trial court "could reasonably [have] conclude[d] that the contents of the packages could have been inferred from their outward appearance, so that appellant could not have held a reasonable expectation of privacy with respect to the contents." 103 Cal.App.3d 34, 40, 162 Cal.Rptr. 780, 783. Because of continuing uncertainty as to whether closed containers found during a lawful warrantless search of an automobile may themselves be searched without a warrant, this Court granted certiorari. 449 U.S. 1109, 101 S.Ct. 916, 66 L.Ed.2d 838. II 12 The Fourth Amendment to the Constitution, which is made applicable to the States through the Fourteenth Amendment, establishes "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." This Court has held that a search is per se unreasonable, and thus violates the Fourth Amendment, if the police making the search have not first secured from a neutral magistrate a warrant that satisfies the terms of the Warrant Clause of the Fourth Amendment. See, e. g., Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576; Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145. Although the Court has identified some exceptions to this warrant requirement, the Court has emphasized that these exceptions are "few," "specifically established," and "well-delineated." Katz v. United States, supra, at 357, 88 S.Ct., at 514. 13 Among these exceptions is the so-called "automobile exception." See Colorado v. Bannister, 449 U.S. 1, 101 S.Ct. 42, 66 L.Ed.2d 142. In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, the Court held that a search warrant is unnecessary "where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained." Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419. In recent years, we have twice been confronted with the suggestion that this "automobile exception" somehow justifies the warrantless search of a closed container found inside an automobile. Each time, the Court has refused to accept the suggestion. 14 In United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538, the Government argued in part that luggage is analogous to motor vehicles for Fourth Amendment purposes, and that the "automobile exception" should thus be extended to encompass closed pieces of luggage. The Court rejected the analogy and insisted that the exception is confined to the special and possibly unique circumstances which were the occasion of its genesis. First, the Court said that "[o]ur treatment of automobiles has been based in part on their inherent mobility, which often makes obtaining a judicial warrant impracticable." Id., at 12, 97 S.Ct., at 2484. While both cars and luggage may be "mobile," luggage itself may be brought and kept under the control of the police. 15 Second, the Court acknowledged that "inherent mobility" cannot alone justify the automobile exception, since the Court has sometimes approved warrantless searches in which the automobile's mobility was irrelevant. See Cady v. Dombrowski, 413 U.S. 433, 441-442, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706; South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000. The automobile exception, the Court said, is thus also supported by "the diminished expectation of privacy which surrounds the automobile" and which arises from the facts that a car is used for transportation and not as a residence or a repository of personal effects, that a car's occupants and contents travel in plain view, and that automobiles are necessarily highly regulated by government. United States v. Chadwick, supra, 433 U.S., at 12-13, 97 S.Ct., at 2484. No such diminished expectation of privacy characterizes luggage; on the contrary, luggage typically is a repository of personal effects, the contents of closed pieces of luggage are hidden from view, and luggage is not generally subject to state regulation. 16 In Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235, the State of Arkansas argued that the "automobile exception" should be extended to allow the warrantless search of everything found in an automobile during a lawful warrantless search of the vehicle itself. The Court rejected this argument for much the same reason it had rejected the Government's argument in Chadwick. Pointing out, first, that "[o]nce police have seized a suitcase, as they did here, the extent of its mobility is in no way affected by the place from which it was taken," the Court said that there generally "is no greater need for warrantless searches of luggage taken from automobiles than of luggage taken from other places." 442 U.S., at 763-764, 99 S.Ct., at 2593. Second, the Court saw no reason to believe that the privacy expectation in a closed piece of luggage taken from a car is necessarily less than the privacy expectation in closed pieces of luggage found elsewhere. 17 In the present case, the Court once again encounters the argument—made in the Government's brief as amicus curiae—that the contents of a closed container carried in a vehicle are somehow not fully protected by the Fourth Amendment. But this argument is inconsistent with the Court's decisions in Chadwick and Sanders. Those cases made clear, if it was not clear before, that a closed piece of luggage found in a lawfully searched car is constitutionally protected to the same extent as are closed pieces of luggage found anywhere else. 18 The respondent, however, proposes that the nature of a container may diminish the constitutional protection to which it otherwise would be entitled—that the Fourth Amendment protects only containers commonly used to transport "personal effects." By personal effects the respondent means property worn on or carried about the person or having some intimate relation to the person. In taking this position, the respondent relies on numerous opinions that have drawn a distinction between pieces of sturdy luggage, like suitcases, and flimsier containers, like cardboard boxes. Compare, e. g., United States v. Benson, 631 F.2d 1336 (CA8 1980) (leather totebag); United States v. Miller, 608 F.2d 1089 (CA5 1979) (plastic portfolio); United States v. Presler, 610 F.2d 1206 (CA4 1979) (briefcase); United States v. Meier, 602 F.2d 253 (CA10 1979) (backpack); United States v. Johnson, 588 F.2d 147 (CA5 1979) (duffel bag); United States v. Stevie, 582 F.2d 1175 (CA8 1978), with United States v. Mannino, 635 F.2d 110 (CA2 1980) (plastic bag inside paper bag); United States v. Goshorn, 628 F.2d 697, 699 (CA1 1980) (" '[t]wo plastic bags, further in three brown paper bags, further in two clear plastic bags' "); United States v. Gooch, 603 F.2d 122 (CA10 1979) (plastic bag); United States v. Mackey, 626 F.2d 684 (CA9 1980) (paper bag); United States v. Neumann, 585 F.2d 355 (CA8 1978) (cardboard box). 19 The respondent's argument cannot prevail for at least two reasons. First, it has no basis in the language or meaning of the Fourth Amendment. That Amendment protects people and their effects, and it protects those effects whether they are "personal" or "impersonal." The contents of Chadwick's footlocker and Sanders' suitcase were immune from a warrantless search because they had been placed within a closed, opaque container and because Chadwick and Sanders had thereby reasonably "manifested an expectation that the contents would remain free from public examination." United States v. Chadwick, supra, at 11, 97 S.Ct., at 2483. Once placed within such a container, a diary and a dishpan are equally protected by the Fourth Amendment. 20 Second, even if one wished to import such a distinction into the Fourth Amendment, it is difficult if not impossible to perceive any objective criteria by which that task might be accomplished. What one person may put into a suitcase, another may put into a paper bag. United States v. Ross, 210 U.S.App.D.C. 342, 655 F.2d 1159 (1981) (en banc). And as the disparate results in the decided cases indicate, no court, no constable, no citizen, can sensibly be asked to distinguish the relative "privacy interests" in a closed suitcase, briefcase, portfolio, duffel bag, or box. 21 The respondent protests that footnote 13 of the Sanders opinion says that "[n]ot all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment." 442 U.S., at 764, n. 13, 99 S.Ct., at 2593, n. 13. But the exceptions listed in the succeeding sentences of the footnote are the very model of exceptions which prove the rule: "Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. Similarly, in some cases the contents of a package will be open to 'plain view,' thereby obviating the need for a warrant." Id., at 764-765, n. 13, 99 S.Ct., at 2593, n. 13. The second of these exceptions obviously refers to items in a container that is not closed. The first exception is likewise little more than another variation of the "plain view" exception, since, if the distinctive configuration of a container proclaims its contents, the contents cannot fairly be said to have been removed from a searching officer's view. The same would be true, of course, if the container were transparent, or otherwise clearly revealed its contents. In short, the negative implication of footnote 13 of the Sanders opinion is that, unless the container is such that its contents may be said to be in plain view, those contents are fully protected by the Fourth Amendment. 22 The California Court of Appeal believed that the packages in the present case fell directly within the second exception described in this footnote, since "[a]ny experienced observer could have inferred from the appearance of the packages that they contained bricks of marijuana." 103 Cal.App.3d, at 40, 162 Cal.Rptr., at 783. The only evidence the court cited to support this proposition was the testimony of one of the officers who arrested the petitioner. When asked whether there was anything about "these two plastic wrapped green blocks which attracted your attention," the officer replied, somewhat obscurely: 23 "A. I had previous knowledge of transportation of such blocks. Normally contraband is wrapped this way, merely hearsay. I had never seen them before. 24 "Q. You had heard contraband was packaged this way? 25 "A. Yes." Id., at 40, n. 2, 162 Cal.Rptr., at 783, n. 4. 26 This vague testimony certainly did not establish that marihuana is ordinarily "packaged this way." Expectations of privacy are established by general social norms, and to fall within the second exception of the footnote in question a container must so clearly announce its contents, whether by its distinctive configuration, its transparency, or otherwise, that its contents are obvious to an observer. If indeed a green plastic wrapping reliably indicates that a package could only contain marihuana, that fact was not shown by the evidence of record in this case.2 27 Although the two bricks of marihuana were discovered during a lawful search of the petitioner's car, they were inside a closed, opaque container. We affirm today that such a container may not be opened without a warrant, even if it is found during the course of the lawful search of an automobile. Since the respondent does not allege the presence of any circumstances that would constitute a valid exception to this general rule,3 it is clear that the opening of the closed containers without a search warrant violated the Fourth and Fourteenth Amendments. Accordingly, the judgment of California Court of Appeal is reversed. 28 It is so ordered. 29 THE CHIEF JUSTICE concurs in the judgment. 30 Justice POWELL, concurring in the judgment. 31 The Court's judgment is justified, though not compelled, by the Court's opinion in Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). Accordingly, I join the judgment. As the plurality today goes well beyond Sanders or any other prior case to establish a new "bright-line" rule, I cannot join its opinion.1 It would require officers to obtain warrants in order to examine the contents of insubstantial containers in which no one had a reasonable expectation of privacy. The plurality's approach strains the rationales of our prior cases and imposes substantial burdens on law enforcement without vindicating any significant values of privacy. I nevertheless concur in the judgment because the manner in which the package at issue was carefully wrapped and sealed evidenced petitioner's expectation of privacy in its contents. As we have stressed in prior decisions, a central purpose of the Fourth Amendment is to safeguard reasonable expectations of privacy. 32 Having reached this decision on the facts of this case, I recognize—as the dissenting opinions find it easy to proclaim—that the law of search and seizure with respect to automobiles is intolerably confusing. The Court apparently cannot agree even on what it has held previously, let alone on how these cases should be decided. Much of this difficulty comes from the necessity of applying the general command of the Fourth Amendment to ever-varying facts; more may stem from the often unpalatable consequences of the exclusionary rule, which spur the Court to reduce its analysis to simple mechanical rules so that the constable has a fighting chance not to blunder. 33 This case and New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, decided today, involve three different Fourth Amendment questions that arise in automobile cases: (A) the scope of the search incident to arrest on the public highway; (B) whether officers must obtain a warrant when they have probable cause to search a particular container in which the suspect has a reasonable expectation of privacy; and (C) the scope of the "automobile exception" to the warrant requirement, which potentially includes all areas of the car and containers found therein. These issues frequently are intertwined, as the similar facts of these cases suggest: both involve the stop of an automobile upon probable cause, the arrest of the occupants, the search of the automobile, and the search of a personal container found therein. Nonetheless, the cases have been litigated and presented to us under entirely different theories. Intelligent analysis cannot proceed unless the issues are addressed separately. Viewing similar facts from entirely different perspectives need not lead to identical results. A. 34 I have joined the Court's opinion in Belton because I concluded that a "bright-line" rule was necessary in the quite different circumstances addressed there.2 Belton, unlike this case, concerns only the exception to the warrant requirement for a search incident to arrest; contrary to Justice STEVENS' implication, post, at 444, 447-448, 451, and n. 13, the courts below never found that the officer had probable cause to search the automobile. Belton presents the volatile and fluid situation of an encounter between an arresting officer and a suspect apprehended on the public highway. While Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), determines in principle the scope of a warrantless search incident to arrest, practical necessity requires that we allow an officer in these circumstances to secure thoroughly the automobile without requiring him in haste and under pressure to make close calculations about danger to himself or the vulnerability of evidence. 35 Any "bright-line" rule does involve costs. Belton trades marginal privacy of containers within the passenger area of an automobile for protection of the officer and of destructible evidence. The balance of these interests strongly favors the Court's rule. The occupants of an automobile enjoy only a limited expectation of privacy in the interior of the automobile itself. See Almeida-Sanchez v. United States, 413 U.S. 266, 279, 93 S.Ct. 2535, 2542, 37 L.Ed.2d 596 (1973) (POWELL, J., concurring). This limited interest is diminished further when the occupants are placed under custodial arrest. Cf. United States v. Robinson, 414 U.S. 218, 237, 94 S.Ct. 467, 478, 38 L.Ed.2d 427 (1973) (POWELL, J., concurring). Immediately preceding the arrest, the passengers have complete control over the entire interior of the automobile, and can place weapons or contraband into pockets or other containers as the officer approaches. Thus, practically speaking, it is difficult to justify varying degrees of protection for the general interior of the car and for the various containers found within. These considerations do not apply to the trunk of the car, which is not within the control of the passengers either immediately before or during the process of arrest. B 36 Although petitioner Robbins was arrested, this case was litigated only on the question whether the officers needed a warrant to open a sealed, opaquely wrapped container in the rear compartment of a station wagon. The plurality treats this situation as identical with that in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), and Sanders, supra, which addressed warrantless searches of a double-locked footlocker and personal luggage respectively. Thus, the plurality's opinion in this case concerns itself primarily with the kinds of containers requiring a warrant for their search when police have probable cause to search them, and where there has been no arrest. For reasons explained more fully below, I will share the plurality's assumption that the police had probable cause to search the container rather than the automobile generally. Viewing this as a "container case," I concur in the judgment. 37 Chadwick and Sanders require police to obtain a warrant to search the contents of a container only when the container is one that generally serves as a repository for personal effects or that has been sealed in a manner manifesting a reasonable expectation that the contents will not be open to public scrutiny. See Chadwick, supra, at 13, 97 S.Ct., at 2484; Sanders, 442 U.S., at 764, 99 S.Ct., at 2593. See, e. g., United States v. Mannino, 635 F.2d 110, 114 (CA2 1980); United States v. Goshorn, 628 F.2d 697, 700-701 (CA1 1980); United States v. Mackey, 626 F.2d 684, 687-688 (CA9 1980); United States v. Ross, 210 U.S.App.D.C. 342, 356-362, 655 F.2d 1159, 1173-1179 (1981) (en banc) (TAMM, J., dissenting). This resembles in principle the inquiry courts must undertake to determine whether a search violates the Fourth Amendment rights of a complaining party. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); id., at 150-152, 99 S.Ct., at 434-435 (POWELL, J., concurring). In each instance, "[t]he ultimate question . . . is whether one's claim to privacy from government intrusion is reasonable in light of the surrounding circumstances." Id., at 152, 99 S.Ct., at 435; see Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). 38 The plurality's approach today departs from this basic concern with interests in privacy, and adopts a mechanical requirement for a warrant before police may search any closed container. Nothing in Chadwick or Sanders justifies this extreme extension of the warrant requirement. Indeed, the Court in Sanders explicitly foreclosed that reading: 39 "There will be difficulties in determining which parcels taken from an automobile require a warrant for their search and which do not. Our decision in this case means only that a warrant generally is required before personal luggage can be searched and that the extent to which the Fourth Amendment applies to containers and other parcels depends not at all upon whether they are seized from an automobile." 442 U.S., at 765, n. 13, 99 S.Ct., at 2593. 40 While the plurality's blanket warrant requirement does not even purport to protect any privacy interest, it would impose substantial new burdens on law enforcement. Confronted with a cigarbox or a Dixie cup in the course of a probable-cause search of an automobile for narcotics, the conscientious policeman would be required to take the object to a magistrate, fill out the appropriate forms, await the decision, and finally obtain the warrant. Suspects or vehicles normally will be detained while the warrant is sought. This process may take hours, removing the officer from his normal police duties. Expenditure of such time and effort, drawn from the public's limited resources for detecting or preventing crimes, is justified when it protects an individual's reasonable privacy interests. In my view, the plurality's requirement cannot be so justified. The aggregate burden of procuring warrants whenever an officer has probable cause to search the most trivial container may be heavy and will not be compensated by the advancement of important Fourth Amendment values. The sole virtue of the plurality's rule is simplicity.3 C 41 The dissenters argue, with some justice, that the controlling question should be the scope of the automobile exception to the warrant requirement. In their view, when the police have probable cause to search an automobile, rather than only to search a particular container that fortuitously is located in it, the exigencies that allow the police to search the entire automobile without a warrant support the warrantless search of every container found therein. See post, at 451, and n. 13 (STEVENS, J., dissenting). This analysis is entirely consistent with the holdings in Chadwick and Sanders, neither of which is an "automobile case," because the police there had probable cause to search the double-locked footlocker and the suitcase respectively before either came near an automobile. See Chadwick, 433 U.S., at 11, 97 S.Ct., at 2483; Sanders, 442 U.S., at 761, 99 S.Ct., at 2591; see also Id., at 766, 99 S.Ct., at 2594 (BURGER, C. J., concurring). Adoption of the dissenters' view would require, however, rejection of a good deal of the reasoning in the latter case. 42 Resolving this case by expanding the scope of the automobile exception is attractive not so much for its logical virtue, but because it may provide ground for agreement by a majority of the presently fractured Court on an approach that would give more specific guidance to police and courts in this recurring situation one that has led to incessant litigation. I note, however, that this benefit would not be realized fully, as courts may find themselves deciding when probable cause ripened, or whether suspicion focused on the container or on the car in which it traveled. 43 The parties have not pressed this argument in this case and it is late in the Term for us to undertake sua sponte reconsideration of basic doctrines. Given these constraints, I adhere to statements in Sanders that the fact that the container was seized from an automobile is irrelevant to the question whether a warrant is needed to search its contents. Some future case affording an opportunity for more thorough consideration of the basic principles at risk may offer some better, if more radical, solution to the confusion that infects this benighted area of the law.4 44 Justice BLACKMUN, dissenting. 45 I must dissent for the reasons stated in my respective writings in United States v. Chadwick, 433 U.S. 1, 17, 97 S.Ct. 2476, 2486, 53 L.Ed.2d 538 (1977), and Arkansas v. Sanders, 442 U.S. 753, 768, 99 S.Ct. 2586, 2595, 61 L.Ed.2d 235 (1979). I also agree with much of what Justice REHNQUIST says, post, at 439-443, in his dissenting opinion in the present case. The anticipated confusion that Chadwick and Sanders spawned for the Nation's trial and appellate courts is well illustrated by Justice STEWART's listing, ante, at 425-426, of cases decided by Federal Courts of Appeals since Chadwick was announced in 1977. 46 The decision in the present case at least has the merit of a "bright line" rule that should serve to eliminate the opaqueness and to dissipate some of the confusion. See 442 U.S., at 771-772, 99 S.Ct., at 2597. Nonetheless, under today's holding, an arresting officer will still be forced, despite a concededly lawful search of the automobile, to go to the magistrate, whether near or far, for the search warrant inevitably to be issued when the facts are like those presented here. And only time will tell whether the "test," ante, at 427, for determining whether a package's exterior "announce[s] its contents" will lead to a new stream of litigation. 47 I continue to think the Court is in error and that it would have been better, see 442 U.S., at 772, 99 S.Ct., at 2597, "to adopt a clear-cut rule to the effect that a warrant should not be required to seize and search any personal property found in an automobile that may in turn be seized and searched without a warrant pursuant to Carroll [v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925),] and Chambers [v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970)]." 48 Justice REHNQUIST, dissenting. 49 I have previously stated why I believe the so-called "exclusionary rule" created by this Court imposes a burden out of all proportion to the Fourth Amendment values which it seeks to advance by seriously impeding the efforts of the national, state, and local governments to apprehend and convict those who have violated their laws. See California v. Minjares, 443 U.S. 916, 100 S.Ct. 9, 61 L.Ed.2d 892 (1979) (REHNQUIST, J., joined by BURGER, C. J., dissenting from the denial of a stay). I have in no way abandoned those views, but believe that the plurality opinion of JUSTICE STEWART announcing the judgment of the Court in the present case compounds the evils of the "exclusionary rule" by engrafting subtleties into the jurisprudence of the Fourth Amendment itself that are neither required nor desirable under our previous decisions. As Justice Harlan stated in his concurring opinion in Coolidge v. New Hampshire, 403 U.S. 443, 490-491, 91 S.Ct. 2022, 2050, 29 L.Ed.2d 564 (1971): 50 "State and federal law enforcement officers and prosecutorial authorities must find quite intolerable the present state of uncertainty, which extends even to such an everyday question as the circumstances under which police may enter a man's property to arrest him and seize a vehicle believed to have been used during the commission of a crime. 51 "I would begin [the] process of re-evaluation by overruling Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). . . . 52 "Until we face up to the basic constitutional mistakes of Mapp and Ker, no solid progress in setting things straight in search and seizure law will, in my opinion, occur." 53 The 10 years which have intervened since Justice Harlan made this statement have only tended to confirm its correctness. 54 The harm caused by the exclusionary rule is compounded by the judicially created preference for a warrant as indicating satisfaction of the reasonableness requirement of the Fourth Amendment. It is often forgotten that nothing in the Fourth Amendment itself requires that searches be conducted pursuant to warrants. The terms of the Amendment simply mandate that the people be secure from unreasonable searches and seizures, and that any warrants which may issue shall only issue upon probable cause: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." 55 Not only has historical study "suggested that in emphasizing the warrant requirement over the reasonableness of the search the Court has 'stood the fourth amendment on its head' from a historical standpoint." Coolidge, supra, at 492, 91 S.Ct., at 2051. (Harlan, J., concurring) (quoting T. Taylor, Two Studies in Constitutional Interpretation 23-24 (1969)), but the Court has failed to appreciate the impact of its decisions, not mandated by the Fourth Amendment, on law enforcement. Courts, including this Court, often make the rather casual assumption that police are not substantially frustrated in their efforts to apprehend those whom they have probable cause to arrest or to gather evidence of crime when they have probable cause to search by the judicially created preference for a warrant, apparently assuming that the typical case is one in which an officer can make a quick half mile ride to the nearest precinct station in an urban area to obtain such a warrant. See, e. g., Steagald v. United States, 451 U.S. 204, 222, 101 S.Ct. 1642, 1652, 68 L.Ed.2d 38 (1981). But this casual assumption simply does not fit the realities of sparsely populated "cow counties" located in some of the Southern and Western States, where at least apocryphally the number of cows exceed the number of people, and the number of square miles in the county may exceed 10,000 and the nearest magistrate may be 25 or even 50 miles away. The great virtue of the opinion in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), was that it made allowance for these vast diversities between States; unfortunately such an approach to the Fourth Amendment in the true spirit of federalism was, as Justice Harlan observed, rejected in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). 56 Recent developments have cast further doubt on the emphasis on a warrant as opposed to the reasonableness of the search. In Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972), the Court ruled that clerks of the Municipal Court of the city of Tampa, Fla., not trained in the law, are "neutral and detached magistrates" who may issue warrants which satisfy the Warrant Clause of the Fourth Amendment. And in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Court held that a defendant can go behind a warrant and attack its validity on a motion to suppress. In emphasizing the warrant requirement the Court has therefore not only erected an edifice without solid foundation but also one with little substance. 57 Even aside from these general observations on the warrant requirement, the case we decide today falls within what has been and should continue to be an exception to that requirement—the automobile exception. In Cady v. Dombrowski, 413 U.S. 433, 439-440, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973), we explained that one class of cases which constitutes "at least a partial exception to this general rule [of requiring a warrant] is automobile searches. Although vehicles are 'effects' within the meaning of the Fourth Amendment, 'for the purposes of the Fourth Amendment there is a constitutional difference between houses and cars.' Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970). See Carroll v. United States, 267 U.S. 132, 153-154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925)." We also stated in Cady: 58 "[T]he application of Fourth Amendment standards, originally intended to restrict only the Federal Government, to the States presents some difficulty when searches of automobiles are involved. The contact with vehicles by federal law enforcement officers usually, if not always, involves the detection or investigation of crimes unrelated to the operation of a vehicle. Cases such as Carroll v. United States, supra, and Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), illustrate the typical situations in which federal officials come into contact with and search vehicles. In both cases, members of a special federal unit charged with enforcing a particular federal criminal statute stopped and searched a vehicle when they had probable cause to believe that the operator was violating that statute. 59 "As a result of our federal system of government, however, state and local police officers, unlike federal officers, have much more contact with vehicles for reasons related to the operation of vehicles themselves. All States require vehicles to be registered and operators to be licensed. States and localities have enacted extensive and detailed codes regulating the condition and manner in which motor vehicles may be operated on public streets and highways." Id., at 441, 93 S.Ct., at 2528. 60 I would not draw from the language of either Cady or of South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the conclusion which the plurality draws today that " 'inherent mobility' cannot alone justify the automobile exception, since the Court has sometimes approved warrantless searches in which the automobile's mobility was irrelevant." Ante, at 424. Logically, it seems to me that the conclusion to be drawn from Cady and Opperman is that one need not demonstrate that a particular automobile was capable of being moved, but that automobiles as a class are inherently mobile, and a defendant seeking to suppress evidence obtained from an automobile should not be heard to say that this particular automobile had broken down, was in a parking lot under the supervision of the police, or the like. Thus, I continue to adhere to the view expressed by Justice BLACKMUN: 61 "If 'contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant,' Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925), then, in my view, luggage and similar containers found in an automobile may be searched for contraband without a warrant. The luggage, like the automobile transporting it, is mobile. And the expectation of privacy in a suitcase found in the car is probably not significantly greater than the expectation of privacy in a locked glove compartment. 62 * * * * * 63 "In my view, it would be better to adopt a clear-cut rule to the effect that a warrant should not be required to seize and search any personal property found in an automobile that may in turn be seized and searched without a warrant pursuant to Carroll and Chambers." Arkansas v. Sanders, 442 U.S. 753, 769, 772, 99 S.Ct. 2586, 2596, 2597, 61 L.Ed.2d 235 (1979) (BLACKMUN, J., dissenting). 64 The proper application of the automobile exception would uphold the search conducted by the California Highway Patrol officers in this case inasmuch as the plurality acknowledges that the officers could constitutionally open the tailgate of the station wagon and then open the car's luggage compartment. Ante, at 428. 65 The plurality, however, concludes that the opening of the two plastic garbage bags which the officers found in the luggage compartment is unconstitutional. In so doing, the plurality relies on its earlier decision in Arkansas v. Sanders, supra, and rejects the argument that the search of the garbage bags should, at a minimum fall within the exception noted in footnote 13 of the Sanders opinion. There, the Court had explained: 66 "Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. Similarly, in some cases the contents of a package will be open to 'plain view,' thereby obviating the need for a warrant. See Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968) (per curiam)." 442 U.S., at 764-765, n. 13, 99 S.Ct., at 2593-2594, n. 13. 67 It seems to me that the search conducted by the Highway Patrol officers falls squarely within the above exception. This is revealed by an examination of the events which prompted the search of the luggage compartment in the first place—events which are conspicuously absent from the recitation of the facts in the plurality opinion. Prior to opening the tailgate of the car, the Highway Patrol officers had already discovered marihuana in the passenger compartment of the car. While the officers were retrieving this marihuana and other drug paraphernalia from the front of the car, petitioner stated: "What you are looking for is in the back." Only then did an officer open the luggage compartment of the station wagon and discover the two plastic garbage bags being used to wrap the blocks of marihuana. One of the officers then testified that he was aware that contraband was often wrapped in this fashion—a fact of which all those who watch the evening news are surely well aware. Given these factors, particularly the petitioner's statement, it seems to me that petitioner could have no reasonable expectation of privacy in the contents of the garbage bags. Surely, given all the circumstances, the contents of the garbage bags "could be inferred from their outward appearance." 68 The present case aptly illustrates the problems inherent in the Fourth Amendment analysis adopted by the Court in the past two decades. Rather than apply the automobile exception to a situation such as the present one, the Court in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), and Sanders, supra, attempted to limit that exception so as not to include certain, but not all, containers found within an automobile. Apparently, the plurality today decides that distinguishing between containers found in a car is too difficult a task and accordingly denudes the language found in footnote 13 of Sanders of most of its meaning. It does so evidently in search of a workable rule to govern automobile searches. I seek such a workable rule as well, but unlike the plurality I feel that such a rule cannot be found as long as the Court continues in the direction it is headed. Instead, I would return to the rationale of Carroll and Chambers and hold that a warrant should not be required to seize and search any personal property found in an automobile that may in turn be constitutionally seized and searched without a warrant. I would not abandon this reasonably "bright line" in search of another. 69 But I think that probably any search for "bright lines" short of overruling Mapp v. Ohio is apt to be illusory. Our entire profession is trained to attack "bright lines" the way hounds attack foxes. Acceptance by the courts of arguments that one thing is the "functional equivalent" of the other, for example, soon breaks down what might have been a bright line into a blurry impressionistic pattern. 70 If city court clerks who are not trained in the law satisfy the warrant requirement of the Fourth and Fourteenth Amendments, and if a defendant may attack the validity of a warrant on a motion to suppress, it seems to me that little is lost in the way of the "core values" of the Fourth Amendment as made applicable to the States by the Fourteenth if Mapp v. Ohio is overruled. This will not establish a bright line except to the extent that it makes clear that the exclusionary rule is not applicable to the States. And it will leave to the Federal Government, with its generally more highly trained law enforcement personnel, the problems of wrestling with this Court's twisting and turning as it makes decisional law applying the Fourth Amendment, rather than forcing the 50 States, with their widely varying conditions and greater traditional responsibility for prevention of serious crime, to engage in the burdensome and frequently futile efforts which are necessary to predict the "correct" result in a particular case. 71 Justice STEVENS, dissenting. 72 It is quite clear to most of us that this case and New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, should be decided in the same way.1 Both cases involve automobile searches. In both cases, the automobiles had been lawfully stopped on the highway, the occupants had been lawfully arrested, and the officers had probable cause to believe that the vehicles contained contraband. In my opinion, the "automobile exception" to the warrant requirement therefore provided each officer the authority to make a thorough search of the vehicle—including the glove compartment, the trunk, and any containers in the vehicle that might reasonably contain the contraband. 73 Such was the state of the law prior to the Court's discursive writing in Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235.2 Be cause The Chief Justice cogently demonstrated in his separate opinion in Sanders—the actual holdings in both Sanders and United States v. Chadwick,i, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538, are entirely consistent with that view of the law, I would apply it in this case. Sanders and Chadwick are both plainly distinguishable from this case because neither case truly involved the automobile exception. 3 narcotic agents had probable cause to search a footlocker which was seized immediately after being placed in the trunk of a car. In Sanders, the officers had probable cause to believe a particular piece of luggage contained contraband before it was placed in the trunk of a taxicab. The officers, however, had no reason to search the vehicle in either case and no right to arrest the driver in Sanders. The issue in Chadwick and Sanders would have been exactly the same if the officers had apprehended the suspects before they placed the footlocker in the trunk of the car in Chadwick or before they hailed the taxi in Sanders.4 The officers' duty to obtain a warrant in both cases could not be evaded by simply waiting until the luggage was placed in a vehicle. 74 I therefore believe that neither Sanders nor Chadwick precludes application of the automobile exception to authorize searches of containers found in cars that police have probable cause to search. Moreover, neither the law as it had developed before Sanders, nor the holding in Sanders, requires the Court to draw distinctions among different kinds of containers. Justice BLACKMUN is surely correct in his forceful demonstration that the Fourth Amendment cannot differentiate between "an orange crate, a lunch bucket, an attache case, a duffelbag, a cardboard box, a backpack, a totebag, and a paper bag." Arkansas v. Sanders, 442 U.S., at 772, 99 S.Ct., at 2597 (dissenting opinion). Except for the author of the Sanders dictum,5 all Members of the Court wisely avoid the pitfalls of such an approach; unfortunately, however, instead of adhering to the simple view that when a warrantless search is within the automobile exception the entire vehicle may be searched, the Court today simultaneously moves too far in opposite directions in these two cases. InRobbins v. California the plurality and Justice POWELL forbid a reasonable search of a container found in the functional equivalent of a trunk, and in New York v. Belton the Court authorizes unreasonable searches of vehicles and containers without probable cause to believe that contraband will be found. I disagree with both of these new approaches and would decide both cases by a consistent application of the automobile exception. 75 * Although a routine application of the automobile exception would provide an adequate basis for upholding the search in this case, the plurality instead quixotically concludes that notwithstanding an officer's probable cause to believe that there is marihuana in a recessed luggage compartment in a station wagon, a green opaque plastic covering provides the contraband with a mantle of constitutional protection. Instead of repudiating the unnecessarily broad dictum that it employed in Sanders—a course, the Court recognized as necessary in other cases this Term6—the plurality engages in an unprecedented and unnecessary narrowing of the automobile exception. 76 In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, the Court reaffirmed the automobile exception established a half century earlier in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, and upheld the warrantless search of an automobile on probable cause.7 The "exception" recognized in Carroll and Chambers, however, applies merely to the requirement that police seek a warrant from a magistrate before conducting a search of places or things protected by the Fourth Amendment. The scope of any search that is within the exception should be just as broad as a magistrate could authorize by warrant if he were on the scene; the automobile exception to the warrant requirement therefore justifies neither more nor less than could a magistrate's warrant. If a magistrate issued a search warrant for an automobile, and officers in conducting the search authorized by the warrant discovered a suitcase in the car, they surely would not need to return to the magistrate for another warrant before searching the suitcase.8 The fact that the marihuana found in petitioner's car was wrapped in opaque green plastic does not take the search out of the automobile exception.9 Accordingly, the search conducted here was proper, and the judgment of the California Court of Appeal should be affirmed. II 77 In Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, instead of relying on the automobile exception to uphold the search of respondent's jacket pocket, the Court takes an extraordinary dangerous detour to reach the same result by adopting an admittedly new rationale applicable to every "lawful custodial arrest" of the occupant of an automobile. 78 The Court's careful and repeated use of the term "lawful custodial arrest"10 seems to imply that a significant distinction between custodial arrests and ordinary arrests exists. I am familiar with the distinction between a "stop," see, e. g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, and an "arrest," but I am not familiar with any difference between custodial arrests and any other kind of arrest. It is, or course, true that persons apprehended for traffic violations are frequently not required to accompany the arresting officer to the police station before they are permitted to leave on their own recognizance or by using their driver's licenses as a form of bond. It is also possible that state law or local regulations may in some cases prohibit police officers from taking persons into custody for violation of minor traffic laws. As a matter of constitutional law, however, any person lawfully arrested for the pettiest misdemeanor may be temporarily placed in custody.11 Indeed, as the Court has repeatedly held, every arrest is a seizure of the person within the meaning of the Fourth Amendment. The rule of constitutional law the Court fashions today therefore potentially applies to every arrest of every occupant of an automobile.12 79 After the vehicle in which respondent was riding was stopped, the officer smelled marihuana and thereby acquired probable cause to believe that the vehicle contained contraband.13 A thorough search of the car was therefore reasonable. But if there were no reason to believe that anything more than a traffic violation had occurred, I should think it palpably unreasonable to require the driver of a car to open his briefcase or his luggage for inspection by the officer.14 The driver so compelled, however, could make no constitutional objection to a decision by the officer to take the driver into custody and thereby obtain justification for a search of the entire interior of the vehicle. Indeed, under the Court's new rule, the arresting officer may find reason to follow that procedure whenever he sees an interesting looking briefcase or package in a vehicle that has been stopped for a traffic violation. That decision by a police officer will therefore provide the constitutional predicate for broader vehicle searches than any neutral magistrate could authorize by issuing a warrant. 80 The Court's reasoning, which will lead to a massive broadening of the automobile exception, is particularly unfortunate because that reasoning is not necessary to the decision. By taking the giant step of permitting searches in the absence of probable cause, the Court misses the shorter step of relying on the automobile exception to uphold the search.15 By taking this shorter step the Court could have adhered to the fundamental distinction between a search that a magistrate could authorize because it is based on probable cause and one that is not so justified under that standard. Although I am persuaded that the Court has reached the right result, its opinion misconstrues the Fourth Amendment. 81 Because I do not regard the dictum in Sanders as a correct statement of the law, because the holding of that case is not applicable in either Robbins or Belton, and because the search in both cases was supported by probable cause and falls within the automobile exception, I respectfully dissent in Robbins and concur in the judgment in Belton. 1 A photograph was made of one of the packages, and it was later described as follows: "The package visible in the photograph is apparently wrapped or boxed in an opaque material covered by an outer wrapping of transparent, cellophane-type plastic. (The photograph is not in color, and the 'green' plastic cannot be seen at all.) Both wrappings are sealed on the outside with at least one strip of opaque tape. As thus wrapped and sealed, the package roughly resembles an oversized, extra-long cigar box with slightly rounded corners and edges. It bears no legend or other written indicia supporting any interference concerning its contents." 103 Cal.App.3d 34, 44, 162 Cal.Rptr. 780, 785 (Rattigan, J., dissenting). 2 As Judge Rattigan wrote in his dissenting opinion in the California Court of Appeal: "For all that I see, it could contain books, stationery, canned goods, or any number of other wholly innocuous items which might be heavy in weight. In fact, it bears a remarkable resemblance to an unlabelled carton of emergency highway flares that I bought from a store shelf and have carried in the trunk of my own automobile." 103 Cal.App.3d, at 44, 162 Cal.Rptr., at 785. 3 In particular, it is not argued that the opening of the packages was incident to a lawful custodial arrest. Cf. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. See Arkansas v. Sanders, 442 U.S. 753, 764, n. 11, 99 S.Ct. 2586, 2593, n. 11, 61 L.Ed.2d 235. Further, the respondent does not argue that the petitioner consented to the opening of the packages. 1 The plurality's "bright-line" rule would extend the Warrant Clause of the Fourth Amendment to every "closed, opaque container," without regard to size, shape, or whether common experience would suggest that the owner was asserting a privacy interest in the contents. The plurality would exempt from the broad reach of its rule only those "closed, opaque containers" where, because of shape or some other characteristic, the "contents may be said to be in plain view." In accordance with the plurality's usage I use the term "container" to include any and all packages, bags, boxes, tins, bottles, and the like. 2 The one significant factual difference is that Belton involved only the passenger compartment (the "interior") of an automobile, whereas this case involves search of the trunk. 3 The plurality overestimates the difficulties involved in determining whether a party has a reasonable expectation of privacy in a particular container. Many containers, such as personal luggage, are "inevitably associated with the expectation of privacy." Arkansas v. Sanders, 442 U.S. 753, 762, 99 S.Ct. 2586, 2592, 61 L.Ed.2d 235 (1979). Many others, varying from a plastic cup to the ubiquitous brown paper grocery sack, consistently lack such an association. In the middle are containers, such as cardboard boxes and laundry bags, that may be used, although imperfectly, as repositories of personal effects, but often are not. As to such containers, I would adopt the view of Chief Judge Coffin: "[W]e disagree that the mere possibility of such use leads to the conclusion that such containers are 'inevitably' associated with an expectation of privacy. The many and varied uses of these containers that entail no expectation of privacy militate against applying a presumption that a warrantless search of such a container violates the Fourth Amendment." United States v. Goshorn, 628 F.2d 697, 700 (CA1 1980). When confronted with the claim that police should have obtained a warrant before searching an ambiguous container, a court should conduct a hearing to determine whether the defendant had manifested a reasonable expectation of privacy in the contents of the container. See id., at 701. Relevant to such an inquiry should be the size, shape, material, and condition of the exterior, the context within which it is discovered, and whether the possessor had taken some significant precaution, such as locking, securely sealing or binding the container, that indicates a desire to prevent the contents from being displayed upon simple mischance. A prudent officer will err on the side of respecting ambiguous assertions of privacy, see Rakas v. Illinois, 439 U.S. 128, 152, n. 1, 99 S.Ct. 421, 435, n. 1, 58 L.Ed.2d 387 (1978) (POWELL, J., concurring), and a realistic court seldom should second-guess the good-faith judgment of the officer in the field when the public consequently must suffer from the suppression of probative evidence, cf. Brown v. Illinois, 422 U.S. 590, 611-612, 95 S.Ct. 2254, 2265-2266, 45 L.Ed.2d 416 (1975) (POWELL, J., concurring). In this case, petitioner, by securely wrapping and sealing his package, had manifested a desire that the public not casually observe the contents. See ante, at 422, n. 1. Our society's traditional respect for the privacy of locked or sealed containers confirms the reasonableness of this expectation. See Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877 (1878) (warrant required for postal inspectors to open sealed packages sent through mail). See also United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 222 (1970). 4 We have an institutional responsibility not only to respect stare decisis but also to make every reasonable effort to harmonize our views on constitutional questions of broad practical application. 1 Justice BLACKMUN, Justice REHNQUIST, and I would uphold the searches in both cases; Justice BRENNAN, Justice WHITE, and Justice MARSHALL would invalidate both searches. Only The Chief Justice, Justice STEWART, and Justice POWELL reach the curious conclusion that a citizen has a greater privacy interest in a package of marihuana enclosed in a plastic wrapper than in the pocket of a leather jacket. 2 Prior to the Court's decision in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538, courts routinely relied on the automobile exception to uphold the search of a container found in a car. The court in United States v. Soriano, 497 F.2d 147, 149 (CA5 1974), cited Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, and stated: "And though it is true that the Court spoke of an automobile while we treat of containers in or just removed from one, the principle is not different. The officer who arrested Soriano and his companions indisputably had probable cause to believe that the vehicle contained contraband, a circumstance justifying the initial incursion into the trunk. Under established law in this circuit and elsewhere, this justification encompassed the search of containers in the vehicle which could reasonably be employed in the illicit carriage of the contraband." See also United States v. Anderson, 500 F.2d 1311, 1315 (CA5 1974); United States v. Evans, 481 F.2d 990, 993-994 (CA9 1973). Indeed, in many cases it apparently never occurred to defendants challenging the validity of automobile searches or the courts considering such challenges that a search of a suitcase or other container located in an automobile presented a different question than the search of the car itself. See, e. g., United States v. Bowman, 487 F.2d 1229 (CA10 1973); United States v. Garner, 451 F.2d 167 (CA6 1971); United States v. Chapman, 474 F.2d 300 (CA5 1973), cert. denied, 414 U.S. 835, 94 S.Ct. 179, 38 L.Ed.2d 71; State v. Hearn, 340 So.2d 1365 (La.1976); State v. Lee, 113 N.H. 313, 307 A.2d 827 (1973); Cf. State v. Warren, 283 So.2d 740 (La.1973). Even after Chadwick was decided courts continued to apply the automobile exception to uphold searches of containers found in cars and rejected the argument that Chadwick constituted a limitation on the automobile exception. See United States v. Milhollan, 599 F.2d 518, 525-527 (CA3 1979), cert. denied, 444 U.S. 909, 100 S.Ct. 221, 62 L.Ed.2d 144; United States v. Finnegan, 568 F.2d 637, 641 (CA9 1977); United States v. Ochs, 595 F.2d 1247 (CA2 1979), cert. denied, 444 U.S. 955, 100 S.Ct. 221, 62 L.Ed.2d 144. But see United States v. Johnson, 588 F.2d 147, 150-152, and n. 6 (CA5 1979) (repudiating United States v. Soriano, supra). 3 As The Chief Justice pointed out in his opinion concurring in the judgment in Sanders: "The breadth of the Court's opinion and its repeated references to the 'automobile' from which respondent's suitcase was seized at the time of his arrest, however, might lead the reader to believe—as the dissenters apparently do—that this case involves the 'automobile' exception to the warrant requirement. See ante, 442 U.S., at 762-765, and n.14, 99 S.Ct., at 2592-2594, and n.14. It does not. Here, as in Chadwick, it was the luggage being transported by respondent at the time of the arrest, not the automobile in which it was being carried, that was the suspected locus of the contraband. The relationship between the automobile and the contraband was purely coincidental, as in Chadwick. The fact that the suitcase was resting in the trunk of the automobile at the time of respondent's arrest does not turn this into an 'automobile' exception case. The Court need say no more. "This case simply does not present the question of whether a warrant is required before opening luggage when the police have probable cause to believe contraband is located somewhere in the vehicle, but when they do not know whether, for example, it is inside a piece of luggage in the trunk, in the glove compartment, or concealed in some part of the car's structure." 442 U.S., at 767, 99 S.Ct., at 2595. 4 Again, as pointed out by The Chief Justice: "Because the police officers had probable cause to believe that respondent's green suitcase contained marihuana before it was placed in the trunk of the taxicab, their duty to obtain a search warrant before opening it is clear under United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). The essence of our holding in Chadwick is that there is a legitimate expectation of privacy in the contents of a trunk or suitcase accompanying or being carried by a person; that expectation of privacy is not diminished simply because the owner's arrest occurs in a public place. Whether arrested in a hotel lobby, an airport, a railroad terminal, or on a public street, as here, the owner has the right to expect that the contents of his luggage will not, without his consent, be exposed on demand of the police." Id., at 766-767, 99 S.Ct., at 2594-2595. 5 See POWELL, J., concurring in the judgment, ante, p. 429. If containers can be classified on the basis of the owner's expectations of privacy, see ibid., it would seem rather clear to me that a brick of marihuana wrapped in green plastic would fall in the nonprivate category. I doubt if many dealers in this substance would be very comfortable carrying around such packages in plain view. 6 Compare McDaniel v. Sanchez, 452 U.S. 130, 101 S.Ct. 2224, 68 L.Ed.2d 724, with East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296, see especially STEWART, J., dissenting in McDaniel, supra, at 154, 101 S.Ct., at 2238; see also Donovan v. Dewey, 452 U.S. 594, 609, 101 S.Ct. 2534, 2543, 69 L.Ed.2d 262 (STEWART, J., dissenting); id., at 606, 101 S.Ct., at 2542 (STEVENS, J., concurring). 7 The Chambers Court indicated that the automobile exception is a recognition of the fact that searches of automobiles generally involved exigent circumstances: "In enforcing the Fourth Amendment's prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution. As a general rule, it has also required the judgment of a magistrate on the probable-cause issue and the issuance of a warrant before a search is made. Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search. Carroll, supra, holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible." 399 U.S. at 51. The Chambers Court held that if a car could be searched on the scene of an arrest, it could also be searched after being taken to the station house. 8 Similarly, if a magistrate issues a warrant for the search of a house, police executing that warrant clearly need not obtain a separate warrant for the search of a suitcase found in the house, so long as the things to be seized could reasonably be found in such a suitcase. 9 Of course, a proper application of the automobile exception will uphold a search of a container located in a car only if the police have probable cause to search the entire car. If, as in Sanders, the police have probable cause only as to a suitcase, and not as to the entire car, then the automobile exception is inapplicable and a warrant is required unless some other exigency exists. Thus police would not be able to avoid a warrant requirement simply by waiting for the suspect to place an object in a car and then invoking the automobile exception. If, however, the occupants of a car have an opportunity to take contraband out of a suitcase and secrete it somewhere else in a car, see Sanders, 442 U.S., at 768, 770, n.3, 99 S.Ct., at 2595, 2596-2597, n.3 (BLACKMUN, J., dissenting), then I would conclude that police have probable cause to search the entire car, including the suitcase, without a warrant. 10 See 453 U.S., at 455, 458, 459, 461, 462, 463, 101 S.Ct., at 2861, 2863, 2864, 2865, and the quotation from United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, at 461, 101 S.Ct., at 2864. 11 Justice STEWART apparently believes that the Fourth and Fourteenth Amendments might provide some impediment to police taking a defendant into custody for violation of a "minor traffic offense." See Gustafson v. Florida, 414 U.S. 260, 266, 94 S.Ct. 488, 492, 38 L.Ed.2d 456 (STEWART, J. concurring). Although I agree that a police officer's authority to restrain an individual's liberty should be limited in the context of stops for routine traffic violations, see Pennsylvania v. Mimms, 434 U.S. 106, 115, 98 S.Ct. 330, 336, 54 L.Ed.2d 331 (STEVENS, J. dissenting), the Court has not directly considered the question whether "there are some constitutional limits upon the use of 'custodial arrests' as the means for invoking the criminal process when relatively minor offenses are involved." See 2 W. LaFave, Search and Seizure § 5.2, p. 290 (1978); see also id., § 5.1, pp. 256-260, § 5.2, pp. 281-291. To the extent that the Court has considered the scope of an officer's authority in making routine traffic stops, the Court has not imposed constitutional restrictions on that authority. See Pennsylvania v. Mimms, supra; United States v. Robinson, supra; Gustafson v. Florida, supra. Thus the Court may be assuming that its new rule will be limited by a constitutional restriction that does not exist. 12 After today, the driver of a vehicle stopped for a minor traffic violation must look to state law for protection from unreasonable searches. Such protection may come from two sources. Statutory law may provide some protection. Legislatures in some States permit officers to take traffic violators into custody only for certain violations. See, e. g., Mich.Comp. Laws §§ 257.727-257.728 (1979). In some States, however, the police officer has the discretion to make a "custodial arrest" for violation of any motor vehicle law. See, e. g., Iowa Code §§ 321.482, 321.485 (1980); Kan.Stat.Ann. § 8-2105 (1975). See also Tex.Rev.Civ.Stat.Ann., Art. 6701d, §§ 147-153 (Vernon 1977); Wallace v. State, 467 S.W.2d 608, 609-610 (Tex.Crim.App.1971); Tores v. State, 518 S.W.2d 378 (Tex.Crim.App.1975) (officer may take driver into custody for any traffic offense except speeding). Additionally, the failure to produce a satisfactory bond will often justify "detention and custodial arrest." People v. Mathis, 55 Ill.App.3d 680, 684, 13 Ill.Dec. 528, 371 N.E.2d 245, 249 (1977). See also Y. Kamisar, W. LaFave, & J. Israel, Modern Criminal Procedure 402, n. a (Supp.4th ed. 1980). Given the incomplete protection afforded by statutory law, drivers in many States will have to persuade state supreme courts to interpret their state constitution's equivalent to the Fourth Amendment to prohibit the unreasonable searches permitted by the Court here. 13 The conclusion that the officers had probable cause to search the car is supported by Robbins, in which the plurality seems to assume the existence of probable cause on the basis of similar facts. Cf. United States v. Bowman, 487 F.2d 1229, 1231 (CA10 1973); United States v. Campos, 471 F.2d 296 (CA9 1972). 14 It would seem equally unreasonable to require a driver to open the trunk of his car, which the Court would not permit, and to require a driver to open luggage located in the back of a station wagon, which would be permissible under the Court's rule. The Court attempts to justify the search in Belton on the basis of the officer's safety, but Justice BRENNAN, dissenting, 453 U.S., at 466-469, 101 S.Ct., at 2867-2869, has forcefully demonstrated the inadequacy of that rationale. 15 It is true that the State in Belton did not argue that the automobile exception justified the search of respondent's jacket pocket. Nevertheless, just as the admission of a piece of evidence will be affirmed if any valid reason for admission existed—even if the one relied upon by the trial judge was not valid—I would uphold the admission of this evidence if any theory justifying the search is valid. This is particularly appropriate given the State's understandable reluctance to argue an issue that many courts have considered to be foreclosed by Sanders. See, e. g., United States v. Rigales, 630 F.2d 364 (CA5 1980); United States v. MacKay, 606 F.2d 264 (CA9 1979); State v. Jenkins, 619 P.2d 108 (Haw.1980).

01

453 U.S. 473 101 S.Ct. 2870 69 L.Ed.2d 784 GULF OFFSHORE COMPANY, a Division of the Pool Company, Petitioner,v.MOBIL OIL CORPORATION et al. No. 80-590. Argued March 31, 1981. Decided July 1, 1981. Syllabus Respondent Mobil Oil Corp. contracted with petitioner for the latter's performance of certain operations on offshore oil drilling platforms. Under the agreement, petitioner promised to indemnify Mobil for all claims resulting directly or indirectly from the work. One of petitioner's employees (also a respondent), working on an oil drilling platform above the seabed of the Outer Continental Shelf, was injured while, because of a storm, he was being evacuated from the platform aboard a boat chartered by Mobil. The employee brought suit for damages in a Texas state court, alleging negligence by Mobil and the boatowner. Mobil filed a third-party complaint for indemnification against petitioner. The trial court rejected petitioner's contention that the court lacked subject-matter jurisdiction over the third-party complaint because Mobil's cause of action arose under the Outer Continental Shelf Lands Act (OCSLA), which vested exclusive subject-matter jurisdiction in a federal district court. During the trial, the court denied petitioner's request to instruct the jury that personal injury damages awards are not subject to federal income taxation and that they should not increase or decrease an award in contemplation of tax consequences. The jury found Mobil negligent and awarded the employee $900,000 for his injuries. It also found that the employee sustained his injuries while performing work subject to the contract of indemnification. The court then entered judgment against petitioner in the amount of $900,000. The Texas Court of Civil Appeals affirmed, and the Texas Supreme Court denied review. Held : 1. Federal courts do not have exclusive jurisdiction over personal injury and indemnity cases arising under OCSLA. Nothing in the language, structure, legislative history, or underlying policies of OCSLA suggests that Congress intended federal courts to exercise exclusive jurisdiction over such actions. Pp. 477-484. (a) As a general principle, state courts may assume subject-matter jurisdiction over a federal cause of action absent provision by Congress to the contrary or disabling incompatibility between the federal claim and state-court adjudication. P. 477-478. (b) Congress did not explicitly grant federal courts exclusive jurisdiction over cases arising under OCSLA. And the OCSLA plan—declaring the Outer Continental Shelf to be an area of "exclusive federal jurisdiction" and adopting "applicable and not inconsistent" laws of the adjacent States to fill the substantial "gaps" in the coverage of federal law—is not inimical to state-court jurisdiction over personal injury actions. Nothing inherent in exclusive federal sovereignty or political jurisdiction over a territory precludes a state court from entertaining a suit concerning events occurring in the territory and governed by federal law. Nor can OCSLA's legislative history be read to rebut the presumption of concurrent state-court jurisdiction, given Congress' silence on the subject in the statute itself. Pp. 478-483. (c) The operation of OCSLA, which borrows state law to govern claims arising under it, will not be frustrated by state-court jurisdiction over personal injury actions. And allowing personal injury and contract actions in state courts will advance interests identified by Congress in enacting OCSLA concerning the special relationship between the men working on offshore platforms and the adjacent shore to which they commute to visit their families. Pp. 483-484. 2. Whether petitioner was entitled to an instruction cautioning the jury that personal injury damages awards are not subject to federal income taxation depends on matters that were not addressed by the court below and that should be initially considered by it on remand of the case. Subsequent to the Texas Court of Civil Appeals' determination that petitioner was not entitled to such an instruction under then current federal case law, this Court decided Norfolk & Western R. Co. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689. In that case, an action under the Federal Employers' Liability Act, this Court, in the absence of any guidance in the statute, articulated a federal common-law rule that a defendant in a federal personal injury action is entitled to an instruction that damages awards are not subject to federal income taxation. However, OCSLA mandates that the law of the adjacent State (Louisiana here) applies as federal law "[t]o the extent [it is] not inconsistent" with federal law. The question whether this incorporation of state law precludes a court from finding that state law is "inconsistent" with the federal common-law rule announced in Liepelt need be answered here only if Louisiana law would not require that the damages instruction be given upon timely request. Thus, the case is remanded to the Court of Civil Appeals to determine whether Louisiana law requires the instruction and, if it does not, whether Liepelt displaces the state rule in an OCSLA case. Pp. 484-488. 594 S.W.2d 496, affirmed in part, vacated in part, and remanded. Charles D. Kennedy, Houston, Tex., for petitioner. Frank Caton, Houston, Tex., for respondent Mobil Oil Corp. and Joseph D. Jamail, Houston, Tex., for the respondent Gaedecke. Justice POWELL delivered the opinion of the Court. 1 This case requires us to determine whether federal courts have exclusive jurisdiction over personal injury and indemnity cases arising under the Outer Continental Shelf Lands Act, 67 Stat. 462, as amended, 43 U.S.C. § 1331 et seq. (1976 ed. and Supp.III). We also consider whether the rule of Norfolk & Western R. Co. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980), that the jury be instructed that personal injury damages awards are not subject to federal income taxation, is applicable to such a case. 2 * Respondent Mobil Oil Corp., contracted with petitioner, Gulf Offshore Co., for the latter to perform certain completion operations on oil drilling platforms offshore of Louisiana. As part of the agreement, petitioner promised to indemnify Mobil for all claims resulting directly or indirectly from the work. While the work was in progress in September 1975, the advent of Hurricane Eloise required that workers be evacuated from oil platforms in the Gulf of Mexico. 3 Steven Gaedecke was an employee of petitioner working on an oil drilling platform above the seabed of the Outer Continental Shelf. As the storm approached, a boat chartered by Mobil took him safely aboard. Shortly thereafter, while assisting crewmen attempting to evacuate other workers from the platforms in turbulent sea, he was washed across the deck of the vessel by a wave. He suffered injuries primarily to his back. 4 Gaedecke brought this suit for damages in the District Court of Harris County, a Texas state court, alleging negligence by Mobil and the boatowner. Mobil filed a third-party complaint for indemnification against petitioner.1 In its third-party answer, petitioner denied that the state court had subject-matter jurisdiction over the third-party complaint. Petitioner argued that Mobil's cause of action arose under the Outer Continental Shelf Lands Act (OCSLA), and that OCSLA vested exclusive subject-matter jurisdiction in a United States district court. The Texas trial court rejected this contention, and the case went to trial before a jury. 5 In submitting the case to the jury, the trial court denied a request by petitioner to instruct them that personal injury damages awards are not subject to federal income taxation and that they should not increase or decrease an award in contemplation of tax consequences. The jury found Mobil negligent and awarded Gaedecke $900,000 for his injuries. The jury also found, however, that Gaedecke sustained his injuries while performing work subject to the contract of indemnification. Based on the two verdicts, the trial judge entered judgment against petitioner in the amount of $900,000. 6 The Texas Court of Civil Appeals affirmed. 594 S.W.2d 496 (1979). It held that the Texas state courts had subjectmatter jurisdiction over the causes of action.2 It acknowledged that OCSLA governed the case, but found no explicit command in the Act that federal-court jurisdiction be exclusive. The court also observed that exclusive federal-court jurisdiction was unnecessary because the Act incorporates as federal law in personal injury actions the laws of the State adjacent to the scene of the events, when not inconsistent with other federal laws. 43 U.S.C. § 1333(a)(2). Thus, the court reasoned, "[t]he end result would be an application of the same laws no matter where the forum was located, whether state or federal." 594 S.W.2d, at 502. The court also held that the trial court did not err in refusing to instruct the jury that damages awards are not subject to federal income taxation. The Texas Supreme Court denied review. 7 We granted certiorari to resolve a conflict over whether federal courts have exclusive subject-matter jurisdiction over suits arising under OCSLA3 and to consider whether an instruction that damages are not taxable is appropriate in such a case. 449 U.S. 1033, 101 S.Ct. 607, 66 L.Ed.2d 494 (1980). II A. 8 The general principle of state-court jurisdiction over cases arising under federal laws is straightforward: state courts may assume subject-matter jurisdiction over a federal cause of action absent provision by Congress to the contrary or disabling incompatibility between the federal claim and statecourt adjudication. Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507-508, 82 S.Ct. 519, 522-523, 7 L.Ed.2d 483 (1962); Claflin v. Houseman, 93 U.S. 130, 136, 23 L.Ed. 833 (1876). This rule is premised on the relation between the States and the National Government within our federal system. See The Federalist No. 82 (Hamilton). The two exercise concurrent sovereignty, although the Constitution limits the powers of each and requires the States to recognize federal law as paramount. Federal law confers rights binding on state courts, the subject-matter jurisdiction of which is governed in the first instance by state laws.4 9 In considering the propriety of state-court jurisdiction over any particular federal claim, the Court begins with the presumption that state courts enjoy concurrent jurisdiction. See California v. Arizona, 440 U.S. 59, 66-67, 99 S.Ct. 919, 924, 59 L.Ed.2d 144 (1979); Charles Dowd Box Co. v. Courtney, 368 U.S., at 507-508, 82 S.Ct., at 522-523. Congress, however, may confine jurisdiction to the federal courts either explicitly or implicitly. Thus, the presumption of concurrent jurisdiction can be rebutted by an explicit statutory directive, by unmistakable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal interests. See ibid.; Claflin, supra, at 137. See also Garner v. Teamsters, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228 (1953) (grievance within jurisdiction of National Labor Relations Board to prevent unfair labor practice not subject to relief by injunction in state court). B 10 No one argues that Congress explicitly granted federal courts exclusive jurisdiction over cases arising under OCSLA. Congress did grant United States district courts "originaljurisdiction of cases and controversies arising out of or in connection with any operations conducted on the outer Continental Shelf. . . ." 43 U.S.C. § 1333(b).5 It is black letter law, however, that the mere grant of jurisdiction to a federal court does not operate to oust a state court from concurrent jurisdiction over the cause of action.6 United States v. Bank of New York & Trust Co., 296 U.S. 463, 479, 56 S.Ct. 343, 348, 80 L.Ed. 331 (1936). 11 OCSLA declares the Outer Continental Shelf to be an area of "exclusive federal jurisdiction." 43 U.S.C. § 1333(a)(1). Chevron Oil Co. v. Huson, 404 U.S. 97, 100, 92 S.Ct. 349, 352, 30 L.Ed.2d 296 (1971).7 Petitioner does contend that the assertion of exclusive political jurisdiction over the Shelf evinces a congressional intent that federal courts exercise exclusive jurisdiction over controversies arising from operations on the Shelf. See Fluor Ocean Services, Inc. v. Rucker Co., 341 F.Supp. 757, 760 (E.D.La.1972). This argument is premised on a perceived incompatibility between exclusive federal sovereignty over the Outer Continental Shelf and state-court jurisdiction over controversies relating to the Shelf. We think petitioner mistakes the purpose of OCSLA and the policies necessitating exclusive federal-court jurisdiction. 12 OCSLA extends the "Constitution and laws and civil and political jurisdiction of the United States" to the subsoil and seabed of the Outer Continental Shelf and to "artificial islands and fixed structures" built for discovery, extraction, and transportation of minerals. 43 U.S.C. § 1333(a)(1). All law applicable to the Outer Continental Shelf is federal law, but to fill the substantial "gaps" in the coverage of federal law, OCSLA borrows the "applicable and not inconsistent" laws of the adjacent States as surrogate federal law. § 1333(a)(2); Rodrigue v. Aetna Casualty Co., 395 U.S. 352, 355-359, 89 S.Ct. 1835, 1837-1839, 23 L.Ed.2d 360 (1969). Thus, a personal injury action involving events occurring on the Shelf is governed by federal law, the content of which is borrowed from the law of the adjacent State, here Louisiana. See id., at 362-365, 89 S.Ct., at 1840-1842. Cf. United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979) (state law incorporated as federal common law concerning priority of liens created by federal law). 13 The OCSLA plan is not inimical to state-court jurisdiction over personal injury actions. Nothing inherent in exclusive federal sovereignty over a territory precludes a state court from entertaining a personal injury suit concerning events occurring in the territory and governed by federal law. Ohio River Contract Co. v. Gordon, 244 U.S. 68, 37 S.Ct. 599, 61 L.Ed. 997 (1917). See 16 U.S.C. § 457 (personal injury and wrongful-death actions involving events occurring "within a national park or other place subject to the exclusive jurisdiction of the United States, within the exterior boundaries of any State" shall be maintained as if the place were under the jurisdiction of the State). Cf. Evans v. Cornman, 398 U.S. 419, 424, 90 S.Ct. 1752, 1756, 26 L.Ed.2d 370 (1970) (residents of an area of exclusive federal jurisdiction within a State are "subject to the process and jurisdiction of state courts"). "The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe." The Federalist No. 82, p. 514 (H. Lodge ed. 1908) (Hamilton), quoted in Claflin v. Houseman, 93 U.S., at 138. State courts routinely exercise subject-matter jurisdiction over civil cases arising from events in other States and governed by the other States' laws. See, e. g., Dennick v. Railroad Co., 103 U.S. 11, 26 L.Ed. 439 (1881). Cf. Allstate Ins. Co. v. Hague, 449 U.S. 302, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981). That the location of the event giving rise to the suit is an area of exclusive federal jurisdiction rather than another State, does not introduce any new limitation on the forum State's subjectmatter jurisdiction.8 Ohio River Contract Co. v. Gordon, supra, 244 U.S., at 72, 37 S.Ct., at 601. 14 Section 1333(a)(3) provides that "adoption of State law as the law of the United States shall never be interpreted as a basis for claiming any interest in or jurisdiction on behalf of any State for any purpose over the seabed and subsoil of the outer Continental Shelf, or the property and natural resources thereof or the revenues therefrom." Petitioner argues that state-court jurisdiction over this personal injury case would contravene this provision. This argument again confuses the political jurisdiction of a State with its judicial jurisdiction. Section 1333(a)(3) speaks to the geographic boundaries of state sovereignty, because Congress primarily was concerned in enacting OCSLA to assure federal control over the Shelf and its resources. See n. 7, supra. The language of the provision refers to "any interest in or jurisdiction over" real property, minerals, and revenues, not over causes of action. Indeed, opponents of OCSLA urged Congress to extend the political boundaries of the States seaward over the Shelf, at least for some purposes. See 99 Cong.Rec. 7230 (remarks of Sen. Ellender), 7232 (remarks of Sen. Long) (1953). The Senate Report explains that § 1333(a)(3) was intended to make plain that the adoption of state law as federal law cannot be the basis for a claim by the State "for participation in the administration of or revenues from the areas outside of State boundaries." 1953 S.Rep., at 23. 15 We do not think the legislative history of OCSLA can be read to rebut the presumption of concurrent state-court jurisdiction, given Congress' silence on the subject in the statute itself. Petitioner relies principally on criticisms by the two Senators from Louisiana, Ellender and Long, who opposed the bill that eventually became OCSLA.9 Yet "[t]he fears and doubts of the opposition are no authoritative guide to the construction of legislation." Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394, 71 S.Ct. 745, 750, 95 L.Ed. 1035 (1951).10 Moreover, the amendments offered by the Senators sought to confer political control over the Shelf and its mineral wealth on the States, not jurisdiction on the state courts over OCSLA cases. See 99 Cong.Rec. 7230 (Sen. Ellender), 7232 (Sen. Long) (1953).11 C 16 The operation of OCSLA will not be frustrated by state-court jurisdiction over personal injury actions. The factors generally recommending exclusive federal-court jurisdiction over an area of federal law include12 the desirability of uniform interpretation, the expertise of federal judges in federal law, and the assumed greater hospitality of federal courts to peculiarly federal claims.13 These factors cannot support exclusive federal jurisdiction over claims whose governing rules are borrowed from state law. There is no need for uniform interpretation of laws that vary from State to State. State judges have greater expertise in applying these laws and certainly cannot be thought unsympathetic to a claim only because it is labeled federal rather than state law. 17 Allowing personal injury and contract actions in state courts will advance interests identified by Congress in enacting OCSLA. A recurring consideration in the deliberations leading to enactment was "the special relationship between the men working on these [platforms] and the adjacent shore to which they commute to visit their families." Rodrigue v. Aetna Casualty Co., 395 U.S., at 365, 89 S.Ct., at 1842. Allowing state-court jurisdiction over these cases will allow these workers, and their lawyers, to pursue individual claims in familiar, convenient, and possibly less expensive fora. See Chevron Oil Co. v. Huson, 404 U.S., at 103, 92 S.Ct., at 353 (state statute of limitations applies to personal injury actions arising under OCSLA). 18 In summary, nothing in the language, structure, legislative history, or underlying policies of OCSLA suggests that Congress intended federal courts to exercise exclusive jurisdiction over personal injury actions arising under OCSLA. The Texas courts had jurisdiction over this case. III 19 The Court of Civil Appeals held that petitioner was not entitled to an instruction cautioning the jury that personal injury damages awards are not subject to federal income taxation, § 104(a)(2) of the Internal Revenue Code of 1954, 26 U.S.C. § 104(a)(2). In so ruling the court relied on Johnson v. Penrod Drilling Co., 510 F.2d 234, 236-237 (CA5) (en banc) (per curiam), cert. denied, 423 U.S. 839, 96 S.Ct. 68, 46 L.Ed.2d 58 (1975), a Jones Act case where the Court of Appeals prohibited presenting evidence or instructing the jury as to the impact of taxes on damages awards based on lost wages. This Court subsequently held that a defendant in a suit brought under the Federal Employers' Liability Act (FELA) 45 U.S.C. § 51 et seq., is entitled to an instruction that damages for lost future wages are not subject to federal income taxation. Norfolk & Western R. Co. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980).14 Petitioner now argues that Liepelt applies to an OCSLA personal injury action and that this case should be remanded for a new trial on damages before a properly instructed jury.15 20 Our first task is to determine the source of law that will govern whether such an instruction must be available in an OCSLA case. OCSLA, as discussed above, mandates that state laws apply as federal laws "[t]o the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws." 43 U.S.C. § 1333(a)(2). In any particular case, the adjacent State's law applies to those areas "which would be within the area of the State if its boundaries were extended seaward to the outer margin of the outer Continental Shelf . . . ." Ibid. The statute thus contains an explicit choice-of-law provision. See n. 8, supra. The parties agree that the substantive law of Louisiana applies to this case, unless it is inconsistent with federal law. 21 To apply the statutory directive a court must consider the content of both potentially applicable federal and state law. Subsequently to the decision of the Texas court, as noted above, we held in Liepelt, supra, that a defendant in an FELA case is entitled to an instruction that damages awards are not subject to federal income taxation.16 As FELA afforded no guidance on this issue, the holding articulated a federal common-law rule. The purpose was to eliminate from the deliberations of juries "an area of doubt or speculation that might have an improper impact on the computation of the amount of damages." 444 U.S., at 498, 100 S.Ct., at 759-760.17 Thus, the instruction furthers strong federal policies of fairness and efficiency in litigation of federal claims. If Congress had been silent about the source of federal law in an OCSLA personal injury case, Liepelt would require that the instruction be given. 22 But Congress was not silent. It incorporated for this case the applicable law of Louisiana, but only "[t]o the extent [it is] not inconsistent" with federal law. The statute does not distinguish between federal statutory and judge-made law. It would seem then that if Louisiana law is "inconsistent," Liepelt controls. Doubt arises, however, because in OCSLA Congress borrowed a remedy provided by state law and thereby "specifically rejected national uniformity" as a paramount goal. Chevron Oil v. Huson, 404 U.S., at 104, 92 S.Ct., at 354. In Chevron, we held that Louisiana rather than federal common law provided the federal statute of limitations for personal injury damages actions under OCSLA. We recognized that "Congress made clear provision for filling the 'gaps' in federal law; it did not intend that federal courts fill those 'gaps' themselves by creating new federal common law." Id., at 104-105, 92 S.Ct., at 354. In this case, we face an analogous question: does the incorporation of state law preclude a court from finding that state law is "inconsistent" with a federal common-law rule generally applicable to federal damages actions? 23 We need answer this question only if Louisiana law would not require that the instruction be given upon timely request. The court below never addressed this question18 but relied solely on federal case law now superseded. Under these circumstances it is the better practice to remand this case to the Texas Court of Civil Appeals for a determination of whether Louisiana law requires the instruction and, if it does not, whether Liepelt displaces the state rule in an OCSLA case. If the court decides that it was error to refuse the instruction, it may then address respondents' argument that petitioner was not prejudiced by the error. 24 Affirmed in part, vacated in part, and remanded. 25 Justice STEWART took no part in the consideration or decision of this case. 26 Justice BLACKMUN, with whom Justice BRENNAN and Justice MARSHALL join, concurring in part and concurring in the result. 27 I join the Court's opinion as to Parts I and II, and I concur in the decision to remand this case for further proceedings as to the applicability of the rule adopted in Norfolk & Western R. Co. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980). I write separately because I have reservations about the Court's expressed intention to apply the Liepelt rule expansively, a ruling I consider unwise and unnecessary to this case in its present posture. 28 As the Court makes clear, ante, at 488, the Texas Court of Civil Appeals on remand must determine, first, what Louisiana law requires as to this form of instruction, and, second, whether that state rule is "inconsistent" with OCSLA or "other Federal laws." 43 U.S.C. § 1333(a)(2). The Court acknowledges, and I agree, that the choice-of-law provision contained in OCSLA creates "[d]oubt," ante, at 487, as to whether Congress intended state law or federal law to govern the grant of this instruction. As I understand OCSLA, the purpose of incorporating state law was to permit actions arising on these federal lands to be determined by rules essentially the same as those applicable to actions arising on the bordering state lands. Congress apparently intended to provide a kind of local uniformity of result, regardless of whether the action arose on shelf lands or on neighboring state lands. I would read the statute, thus, to encourage use of state law, and I would permit the state court to weigh, as an initial matter and only if the Louisiana rule differs from the Liepelt rule, whether Congress' desire for local uniformity outweighs any perceived need, as a matter of federal common law, for the instruction. I do not find it self-evident that Liepelt created a general "federal common-law rule" that so greatly "furthers strong federal policies of fairness and efficiency in litigation of federal claims," ante, at 486, 487, as to require its application in cases governed by the Outer Continental Shelf Lands Act. In my view, this question was not settled in Liepelt, and it remains open for future adjudication. 1 Mobil claimed indemnification on the grounds of both its contract with petitioner and the allegation that petitioner's negligence caused the accident. Prior to trial Gaedecke entered into a conditional settlement agreement with Mobil, which limited his potential recovery against Mobil to $200,000; in return Mobil agreed to proceed against petitioner for indemnification only on the basis of the contract. Gaedecke also settled his claim with the boatowner. 2 Texas had in personam jurisdiction over Mobil and petitioner, each of whom does business in Texas. Gaedecke was a resident of Harris County, Tex. 3 See Pool v. Kemper Ins. Group, 386 So.2d 1006 (La.App.1980); Friedrich v. Whittaker Corp., 467 F.Supp. 1012 (S.D.Tex.1979); Gravois v. Travelers Indemnity Co., 173 So.2d 550 (La.App.1965). See also Fluor Ocean Services, Inc. v. Rucker Co., 341 F.Supp. 757, 760 (E.D.La.1972). 4 Permitting state courts to entertain federal causes of action facilitates the enforcement of federal rights. If Congress does not confer jurisdiction on federal courts to hear a particular federal claim, the state courts stand ready to vindicate the federal right, subject always to review, of course, in this Court. See Martin v. Hunter's Lessee, 1 Wheat. 304, 346-348, 4 L.Ed. 97 (1816). This practical concern was more important before the statutory creation in 1875 of general federal-question jurisdiction. 5 Congress amended and recodified the jurisdictional provisions of OCSLA in 1978, without effecting any change that casts light on the issue of exclusive federal-court jurisdiction before us today. Pub.L. 95-372, Title II, § 208(b), 92 Stat. 657. See S.Conf.Rep.No.95-1091, p. 114 (1978). But cf. Pub.L. 95-372, Title II, § 208(a)(2)(B), 92 Stat. 657 (contemplating suit by the Attorney General in state court to remedy violations of the Act). The grant of jurisdiction to a federal district court is now codified at 43 U.S.C. § 1349(b)(1) (1976 ed., Supp.III). In this opinion, we employ the Code citations prior to the recodification. 6 This principle defeats petitioner's reliance on the provision in § 1333(a)(2): "All of such applicable laws shall be administered and enforced by the appropriate officers and courts of the United States." The phrase "such applicable laws" refers to the laws of the adjacent States, which § 1333(a)(2) incorporates as federal law for the Outer Continental Shelf. See infra, at 480-481. The language relied upon merely makes clear that these borrowed state laws are to be enforced like other federal laws, and nothing indicates an intent to exclude state courts from the subject-matter jurisdiction they exercise generally over federal claims. 7 The legislative history confirms that the purpose of OCSLA was "to assert the exclusive jurisdiction and control of the Federal Government of the United States over the seabed and subsoil of the outer Continental Shelf, and to provide for the development of its vast mineral resources." S.Rep.No.411, 83d Cong., 1st Sess., 2 (1953) (hereinafter 1953 S.Rep.). Congress enacted OCSLA in the wake of decisions by this Court that the Federal Government enjoyed sovereignty and ownership of the seabed and subsoil of the Outer Continental Shelf to the exclusion of adjacent States. See United States v. Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221 (1950); United States v. Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216 (1950). See also United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947). See generally Maryland v. Louisiana, 451 U.S. 725, 730, 101 S.Ct. 2114, 2120, 68 L.Ed.2d 576 (1981). Congress chose to retain exclusive federal control of the administration of the Shelf because it underlay the high seas and the assertion of sovereignty there implicated the foreign policies of the Nation. See 1953 S.Rep., at 6. Much of OCSLA provides a federal framework for the granting of leases for exploration and extraction of minerals from the submerged lands of the Shelf. See 43 U.S.C. §§ 1334-1343. Congress was not unaware, however, of the close, longstanding relationship between the Shelf and the adjacent States. See 1953 S.Rep., at 6. This concern manifested itself primarily in the incorporation of the law of adjacent States to fill gaps in federal law. See Rodrigue v. Aetna Casualty Co., 395 U.S. 352, 365, 89 S.Ct. 1835, 1842, 23 L.Ed.2d 360 (1969). It should be emphasized that this case only involves state-court jurisdiction over actions based on incorporated state law. We express no opinion on whether state courts enjoy concurrent jurisdiction over actions based on the substantive provisions of OCSLA. 8 OCSLA does supersede the normal choice-of-law rules that the forum would apply. See Chevron Oil Co. v. Huson, 404 U.S. 97, 102-103, 92 S.Ct. 349, 353, 30 L.Ed.2d 926 (1971). It also provides where proper venue will be found: "in the judicial district in which any defendant resides or may be found, or in the judicial district of the State nearest the place the cause of action arose." 43 U.S.C. § 1349(b)(1) (1976 ed., Supp.III). 9 Petitioner also relies on a report made to the Senate Committee by the Department of Justice, which argued that the Federal Government should "have the exclusive control of lawmaking and law enforcement" on the Shelf. 1953 S.Rep., at 6. But Congress rejected the Department's premise that the Shelf is "not comparable to . . . federally owned areas within a State." Ibid. See Rodrigue v. Aetna Casualty Co., 395 U.S., at 365, 89 S.Ct., at 1842. Section 1333(a)(1) rather provides that the federal laws apply to the Shelf "to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State." 10 Senator Long did express the fear that OCSLA placed exclusive jurisdiction over all civil suits in federal district courts. 1953 S.Rep., at 66 (minority report); 99 Cong.Rec. 7233 (1953). 11 Most of the Senators' statements regarding OCSLA's effect on state-court jurisdiction criticize placing exclusive criminal jurisdiction in federal courts. See, e. g., id., at 7231-7232 (Sen. Ellender). But the statute that gives federal courts exclusive jurisdiction over federal crimes, 18 U.S.C. § 3231, has no relevance to this case. 12 Exclusive federal-court jurisdiction over a cause of action generally is unnecessary to protect the parties. The plaintiff may choose the available forum he prefers, and the defendant may remove the case if it could have been brought originally in a federal court. 28 U.S.C. § 1441(b). Also, exclusive federal jurisdiction will not prevent a state court from deciding a federal question collaterally even if it would not have subject-matter jurisdiction over a case raising the question directly. See Note, Exclusive Jurisdiction of Federal Courts in Private Civil Actions, 70 Harv.L.Rev. 509, 510 (1957). 13 See Redish & Muench, Adjudication of Federal Causes of Action in State Court, 75 Mich.L.Rev. 311, 329-335 (1976); Note, 70 Harv.L.Rev., supra n.12, at 511-515. 14 Liepelt also found error in the trial court's refusal to allow the defendant to introduce evidence showing the effect of income taxes on the plaintiff's future earnings. 444 U.S., at 493-496, 100 S.Ct., at 757-759. This case does not present the question whether this second holding is applicable to OCSLA cases. 15 Respondents argue that we cannot address the necessity of giving the requested instruction because petitioner did not preserve its objection in the trial court in the manner required by Texas law. This argument is incorrect. The Texas Court of Civil Appeals held on the merits that petitioner was not entitled to the instruction. We also reject respondents' contention that we are foreclosed from deciding the issue because petitioner did not introduce any evidence about the effect of taxation on Gaedecke's future earnings. No evidentiary predicate is required to instruct a jury not to consider taxes. 16 Respondents' argument that Liepelt should apply prospectively only is insubstantial. Here, we address a change in the law occurring while the case is on direct appeal. "[A]n appellate court must apply the law in effect at the time it renders its decision." Thorpe v. Housing Authority of City of Durham, 393 U.S. 268, 281, 89 S.Ct. 518, 525, 21 L.Ed.2d 474 (1969); see United States v. Schooner Peggy, 5 U.S. 103, 1 Cranch 103, 2 L.Ed. 49 (1801). While there well might be an exception to the rule to prevent "manifest injustice," Bradley v. Richmond School Board, 416 U.S. 696, 717, 94 S.Ct. 2006, 2019, 40 L.Ed.2d 476 (1974), this equitable exception does not reach a private civil suit where the change does not extinguish a cause of action but merely requires a retrial on damages before a properly instructed jury. Lang v. Texas & Pacific R. Co., 624 F.2d 1275, 1279-1280, and n. 9 (CA5 1980). Indeed, considerations of fairness support retroactive application: failure to give the instruction may lead to the plaintiff recovering a windfall award. Norfolk & Western R. Co. v. Liepelt, supra, at 497-498, 100 S.Ct., at 759-760. The overwhelming weight of authority supports retroactive application of this decision. See O'Byrne v. St. Louis Southwestern R. Co., 632 F.2d 1285 (CA5 1980); Flanigan v. Burlington Northern Inc., 632 F.2d 880 (CA8 1980); Lang v. Texas & Pacific R. Co., supra; Crabtree v. St. Louis-San Francisco R. Co., 89 Ill.App.3d 35, 44 Ill.Dec. 113, 411 N.E.2d 19 (1980). Other cases have applied Liepelt retroactively without comment. Cazad v. Chesapeake & Ohio R. Co., 622 F.2d 72 (CA4 1980); Seaboard Coast Line R. Co. v. Yow, 384 So.2d 13 (Ala.1980). But see Ingle v. Illinois Central Gulf R. Co., 608 S.W.2d 76 (Mo.App.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1359, 67 L.Ed.2d 341 (1981). 17 The general applicability of Liepelt is indicated by the Court's quotation with approval of the explanation of need for the instruction in Domeracki v. Humble Oil & Refining Co., 443 F.2d 1245, 1251 (CA3), cert. denied, 404 U.S. 883, 92 S.Ct. 212, 30 L.Ed.2d 165 (1971), a longshoreman's action based on the unseaworthiness of a vessel. " 'We take judicial notice of the "tax consciousness" of the American public. Yet, we also recognize, as did the court in Dempsey v. Thompson, 363 Mo. 339, 251 S.W.2d 42 (1952), that few members of the general public are aware of the special statutory exemption for personal injury awards contained in the Internal Revenue Code. " ' "[T]here is always danger that today's tax-conscious juries may assume (mistakenly of course) that the judgment will be taxable and therefore make their verdict big enough so that plaintiff would get what they think he deserves after the imaginary tax is taken out of it." " 'II Harper & James, The Law of Torts § 25.12, at 1327-1328 (1956).' " Liepelt, supra, 444 U.S., at 497, 100 S.Ct., at 759. None of the Court's reasoning was directed particularly at FELA. 18 The Louisiana cases that have come to our attention do not provide conclusive guidance. Compare the earlier case of Guerra v. Young Construction Corp., 165 So.2d 882 (La.App.1964) (not error to deny the instruction), with the later cases of DeBose v. Trapani, 295 So.2d 72 (La.App.1974), and Francis v. Government Employers' Ins. Co., 376 So.2d 609 (La.App.1979) (proper to give the instruction). These Louisiana cases were considered by the Court of Appeals for the Fifth Circuit in a diversity case, Croce v. Bromley Corp., 623 F.2d 1084 (1980), cert. denied, sub nom. Bromley Corp. v. Cortese, 450 U.S. 981, 101 S.Ct. 1516, 67 L.Ed.2d 816 (1981), and if followed the holding in Guerra.

910

453 U.S. 654 101 S.Ct. 2972 69 L.Ed.2d 918 DAMES & MOORE, Petitioner,v.Donald T. REGAN, Secretary of the Treasury, et al. No. 80-2078. Argued June 24, 1981. Decided July 2, 1981. Syllabus In response to the seizure of American personnel as hostages at the American Embassy in Tehran, Iran, President Carter, pursuant to the International Emergency Economic Powers Act (IEEPA), declared a national emergency on November 14, 1979, and blocked the removal or transfer of all property and interests in property of the Government of Iran which were subject to the jurisdiction of the United States. The Treasury Department then issued implementing regulations providing that "[u]nless licensed or authorized . . . any attachment, judgment, decree, lien, execution, garnishment, or other judicial process is null and void with respect to any property in which on or since [November 14, 1979,] there existed an interest of Iran; " and that any licenses or authorizations granted could be "amended, modified, or revoked at any time." The President then granted a general license that authorized certain judicial proceedings, including prejudgment attachments, against Iran but did not allow the entry of any judgment or decree. On December 19, 1979, petitioner filed suit in Federal District Court against the Government of Iran, the Atomic Energy Organization of Iran, and a number of Iranian banks, alleging that it was owed a certain amount of money for services performed under a contract with the Atomic Energy Organization. The District Court issued orders of attachment against the defendants' property, and property of certain Iranian banks was then attached to secure any judgment that might be entered against them. Subsequently, on January 19, 1981, the Americans held hostage were released by Iran pursuant to an agreement with the United States. Under this agreement the United States was obligated to terminate all legal proceedings in United States courts involving claims of United States nationals against Iran, to nullify all attachments and judgments obtained therein, and to bring about the termination of such claims through binding arbitration in an Iran-United States Claims Tribunal. The President at the same time issued implementing Executive Orders revoking all licenses that permitted the exercise of "any right, power, or privilege" with regard to Iranian funds, nullifying all non-Iranian interests in such assets acquired after the blocking order of November 14, 1979, and requiring banks holding Iranian assets to transfer them to the Federal Reserve Bank of New York to be held or transferred as directed by the Secretary of the Treasury. On February 24, 1981, President Reagan issued an Executive Order which ratified President Carter's Executive Orders and "suspended" all claims that may be presented to the Claims Tribunal, but which provided that the suspension of a claim terminates if the Claims Tribunal determines that it has no jurisdiction over the claim. Meanwhile, the District Court granted summary judgment for petitioner and awarded it the amount claimed under the contract plus interest, but stayed execution of the judgment pending appeal by the defendants, and ordered that all prejudgment attachments against the defendants be vacated and that further proceedings against the bank defendants be stayed. Petitioner then filed an action in Federal District Court against the United States and the Secretary of the Treasury, seeking to prevent enforcement of the various Executive Orders and regulations implementing the agreement with Iran. It was alleged that the actions of the President and the Secretary of the Treasury were beyond their statutory and constitutional powers, and in any event, were unconstitutional to the extent they adversely affect petitioner's final judgment against Iran and the Atomic Energy Organization, its execution of that judgment, its prejudgment attachments, and its ability to continue to litigate against the Iranian banks. The District Court dismissed the complaint for failure to state a claim upon which relief could be granted, but entered an injunction pending appeal to the Court of Appeals prohibiting the United States from requiring the transfer of Iranian property that is subject to any writ of attachment issued by any court in petitioner's favor. This Court then granted certiorari before judgment. Held: 1. The President was authorized to nullify the attachments and order the transfer of Iranian assets by the provision of the IEEPA, 50 U.S.C. § 1702(a)(1)(B), which empowers the President to "compel," "nullify," or "prohibit" any "transfer" with respect to, or transactions involving, any property subject to the jurisdiction of the United States, in which any foreign country has any interest. Pp. 669-674. (a) Nothing in the legislative history of either § 1702 or § 5(b) of the Trading With the Enemy Act (TWEA), from which § 1702 was directly drawn, requires reading out of § 1702 all meaning to the words "transfer," "compel," or "nullify," and limiting the President's authority in this case only to continuing the freeze, as petitioner claims. To the contrary, both the legislative history and cases interpreting the TWEA fully sustain the President's broad authority when acting under such congressional grant of power. And the changes brought about by the enactment of the IEEPA did not in any way affect the President's authority to take the specific action taken here. By the time petitioner brought the instant action, the President had already entered the freeze order, and petitioner proceeded against the blocked assets only after the Treasury Department had issued revocable licenses authorizing such proceedings and attachments. The attachments obtained by petitioner, being subject to revocation, were specifically made subordinate to further actions which the President might take under the IEEPA. Pp. 671-673. (b) Blocking orders, such as the one here, permit the President to maintain foreign assets at his disposal for use in negotiating the resolution of a declared national emergency, and the frozen assets serve as a "bargaining chip" to be used by the President when dealing with a hostile country. To limit the President's authority, as petitioner urges, would mean that claimants could minimize or eliminate this "bargaining chip" through attachments or similar encumbrances. Pp. 673-674. (c) Petitioner's interest in its attachments was conditional and revocable and as such the President's action nullifying the attachments and ordering the transfer of the assets did not effect a taking of property in violation of the Fifth Amendment absent just compensation. P. 674, n. 6. (d) Because the President's action in nullifying the attachments and ordering the transfer of assets was taken pursuant to specific congressional authorization, it is "supported by the strongest presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637, 72 S.Ct. 863, 871, 96 L.Ed. 1153 (Jackson, J., concurring). Under the circumstances of this case, petitioner has not sustained that burden. P. 674. 1 2. On the basis of the inferences to be drawn from the character of the legislation, such as the IEEPA and the Hostage Act, which Congress has enacted in the area of the President's authority to deal with international crises, and from the history of congressional acquiescence in executive claims settlement, the President was authorized to suspend claims pursuant to the Executive Order in question here. Pp. 675-688. 2 (a) Although neither the IEEPA nor the Hostage Act constitutes specific authorization for the President's suspension of the claims, these statutes are highly relevant as an indication of congressional acceptance of a broad scope for executive action in circumstances such as those presented in this case. Pp. 675-679. 3 (b) The United States has repeatedly exercised its sovereign authority to settle the claims of its nationals against foreign countries. Although those settlements have sometimes been made by treaty, there has also been a longstanding practice of settling such claims by executive agreement without the advice and consent of the Senate, and this practice continues at the present time. Pp. 679-680. 4 (c) That Congress has implicitly approved the practice of claims settlement by executive agreement is best demonstrated by Congress' enactment of the International Claims Settlement Act of 1949, which created the International Claims Commission, now the Foreign Claims Settlement Commission, and gave it jurisdiction to make final and binding decisions with respect to claims by United States nationals against settlement funds. And the legislative history of the IEEPA further reveals that Congress has accepted the authority of the President to enter into settlement agreements. Pp. 680-682. 5 (d) In addition to congressional acquiescence in the President's power to settle claims, prior cases of this Court have also recognized that the President has some measure of power to enter into executive agreements without obtaining the advice and consent of the Senate. See, e. g., United States v. Pink, 315 U.S. 203, 62 S.Ct. 552, 86 L.Ed. 796. Pp. 682-683. 6 (e) Petitioner's argument that all settlement claims prior to 1952 when the United States had adhered to the doctrine of absolute sovereign immunity should be discounted because of the evolution of sovereign immunity, is refuted by the fact that since 1952 there have been at least 10 claim settlements by executive agreement. Thus, even if the pre-1952 cases should be disregarded, congressional acquiescence in settlement agreements since that time supports the President's power to act here. Pp. 683-684. 7 (f) By enacting the Foreign Sovereign Immunities Act of 1976 (FSIA), which granted personal and subject-matter jurisdiction to federal district courts over commercial suits by claimants against foreign states that waived immunity, Congress did not divest the President of the authority to settle claims. The President, by suspending petitioner's claim, has not circumscribed the jurisdiction of the United States courts in violation of Art. III, but has simply effected a change in the substantive law governing the lawsuit. The FSIA was designed to remove one particular barrier to suit, namely, sovereign immunity, and cannot be read as prohibiting the President from settling claims of United States nationals against foreign governments. Pp. 684-686. 8 (g) Long continued executive practice, known to and acquiesced in by Congress, raises a presumption that the President's action has been taken pursuant to Congress' consent. Such practice is present here and such a presumption is also appropriate. P. 686. 9 (h) The conclusion that the President's action in suspending petitioner's claim did not exceed his powers is buttressed by the fact the President has provided an alternative forum, the Claims Tribunal, to settle the claims of the American nationals. Moreover, Congress has not disapproved the action taken here. Pp. 686-688. 10 (i) While it is not concluded that the President has plenary power to settle claims, even against foreign governmental entities, nevertheless, where, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute between this country and another, and Congress has acquiesced in the President's action, it cannot be said that the President lacks the power to settle such claims. P. 688. 11 3. The possibility that the President's actions with respect to the suspension of the claims may effect a taking of petitioner's property in violation of the Fifth Amendment in the absence of just compensation, makes ripe for adjudication the question whether petitioner will have a remedy at law in the Court of Claims. And there is no jurisdictional obstacle to an appropriate action in that court under the Tucker Act. Pp. 688-690. 12 Affirmed. 13 C. Stephen Howard, Tuttle & Taylor, Inc., Los Angeles, Cal., for petitioner. 14 Rex E. Lee, Special Atty., U.S. Dept. of Justice, Washington, D. C., for federal respondents. 15 Thomas Shack, Jr., Abourezk, Shack & Mendenhall, Washington, D. C., for the Islamic Republic of Iran. 16 Eric M. Lieberman, New York City, for the Bank Markazi Iran. 17 Justice REHNQUIST delivered the opinion of the Court. 18 The questions presented by this case touch fundamentally upon the matter in which our Republic is to be governed. Throughout the nearly two centuries of our Nation's existence under the Constitution, this subject has generated considerable debate. We have had the benefit of commentators such as John Jay, Alexander Hamilton, and James Madison writing in The Federalist Papers at the Nation's very inception, the benefit of astute foreign observers of our system such as Alexis deTocqueville and James Bryce writing during the first century of the Nation's existence, and the benefit of many other treatises as well as more than 400 volumes of reports of decisions of this Court. As these writings reveal it is doubtless both futile and perhaps dangerous to find any epigrammatical explanation of how this country has been governed. Indeed, as Justice Jackson noted, "[a] judge . . . may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634, 72 S.Ct. 863, 888, 96 L.Ed. 1153 (1952) (concurring opinion). 19 Our decision today will not dramatically alter this situation, for the Framers "did not make the judiciary the overseer of our government." Id., at 594, 72 S.Ct., at 889 (Frankfurter, J., concurring). We are confined to a resolution of the dispute presented to us. That dispute involves various Executive Orders and regulations by which the President nullified attachments and liens on Iranian assets in the United States, directed that these assets be transferred to Iran, and suspended claims against Iran that may be presented to an International Claims Tribunal. This action was taken in an effort to comply with an Executive Agreement between the United States and Iran. We granted certiorari before judgment in this case, and set an expedited briefing and argument schedule, because lower courts had reached conflicting conclusions on the validity of the President's actions and, as the Solicitor General informed us, unless the Government acted by July 19, 1981, Iran could consider the United States to be in breach of the Executive Agreement. 20 But before turning to the facts and law which we believe determine the result in this case, we stress that the expeditious treatment of the issues involved by all of the courts which have considered the President's actions makes us acutely aware of the necessity to rest decision on the narrowest possible ground capable of deciding the case. Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). This does not mean that reasoned analysis may give way to judicial fiat. It does mean that the statement of Justice Jackson—that we decide difficult cases presented to us by virtue of our commissions, not our competence is especially true here. We attempt to lay down no general "guidelines" covering other situations not involved here, and attempt to confine the opinion only to the very questions necessary to decision of the case. 21 Perhaps it is because it is so difficult to reconcile the foregoing definition of Art. III judicial power with the broad range of vitally important day-to-day questions regularly decided by Congress or the Executive, without either challenge or interference by the Judiciary, that the decisions of the Court in this area have been rare, episodic, and afford little precedential value for subsequent cases. The tensions present in any exercise of executive power under the tri-partite system of Federal Government established by the Constitution have been reflected in opinions by Members of this Court more than once. The Court stated in United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-320, 57 S.Ct. 216, 220-221, 81 L.Ed. 255 (1936): 22 "[W]e are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution." 23 And yet 16 years later, Justice Jackson in his concurring opinion in Youngstown, supra, which both parties agree brings together as much combination of analysis and common sense as there is in this area, focused not on the "plenary and exclusive power of the President" but rather responded to a claim of virtually unlimited powers for the Executive by noting: 24 "The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image." 343 U.S., at 641, 72 S.Ct., at 873. 25 As we now turn to the factual and legal issues in this case, we freely confess that we are obviously deciding only one more episode in the never-ending tension between the President exercising the executive authority in a world that presents each day some new challenge with which he must deal and the Constitution under which we all live and which no one disputes embodies some sort of system of checks and balances. 26 * On November 4, 1979, the American Embassy in Tehran was seized and our diplomatic personnel were captured and held hostage. In response to that crisis, President Carter, acting pursuant to the International Emergency Economic Powers Act, 91 Stat. 1626, 50 U.S.C. §§ 1701-1706 (1976 ed., Supp. III) (hereinafter IEEPA), declared a national emergency on November 14, 1979,1 and blocked the removal or transfer of "all property and interests in property of the Government of Iran, its instrumentalities and controlled entities and the Central Bank of Iran which are or become subject to the jurisdiction of the United States. . . ." Exec. Order No. 12170, 3 CFR 457 (1980), note following 50 U.S.C. § 1701 (1976 ed., Supp. III).2 President Carter authorized the Secretary of the Treasury to promulgate regulations carrying out the blocking order. On November 15, 1979, the Treasury Department's Office of Foreign Assets Control issued a regulation providing that "[u]nless licensed or authorized . . . any attachment, judgment, decree, lien, execution, garnishment, or other judicial process is null and void with respect to any property in which on or since [November 14, 1979,] there existed an interest of Iran." 31 CFR § 535.203(e) (1980). The regulations also made clear that any licenses or authorizations granted could be "amended, modified, or revoked at any time." § 535.805.3 27 On November 26, 1979, the President granted a general license authorizing certain judicial proceedings against Iran but which did not allow the "entry of any judgment or of any decree or order of similar or analogous effect. . . ." § 535.504(a). On December 19, 1979, a clarifying regulation was issued stating that "the general authorization for judicial proceedings contained in § 535.504(a) includes pre-judgment attachment." § 535.418. 28 On December 19, 1979, petitioner Dames & Moore filed suit in the United States District Court for the Central District of California against the Government of Iran, the Atomic Energy Organization of Iran, and a number of Iranian banks. In its complaint, petitioner alleged that its wholly owned subsidiary, Dames & Moore International, S. R. L., was a party to a written contract with the Atomic Energy Organization, and that the subsidiary's entire interest in the contract had been assigned to petitioner. Under the contract, the subsidiary was to conduct site studies for a proposed nuclear power plant in Iran. As provided in the terms of the contract, the Atomic Energy Organization terminated the agreement for its own convenience on June 30, 1979. Petitioner contended, however, that it was owed $3,436,694.30 plus interest for services performed under the contract prior to the date of termination.4 The District Court issued orders of attachment directed against property of the defendants, and the property of certain Iranian banks was then attached to secure any judgment that might be entered against them. 29 On January 20, 1981, the Americans held hostage were released by Iran pursuant to an Agreement entered into the day before and embodied in two Declarations of the Democratic and Popular Republic of Algeria. Declaration of the Government of the Democratic and Popular Republic of Algeria (App. to Pet. for Cert. 21-29), and Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran (id., at 30-35). The Agreement stated that "[i]t is the purpose of [the United States and Iran] . . . to terminate all litigation as between the Government of each party and the nationals of the other, and to bring about the settlement and termination of all such claims through binding arbitration." Id., at 21-22. In furtherance of this goal, the Agreement called for the establishment of an Iran-United States Claims Tribunal which would arbitrate any claims not settled within six months. Awards of the Claims Tribunal are to be "final and binding" and "enforceable . . . in the courts of any nation in accordance with its laws." Id., at 32. Under the Agreement, the United States is obligated 30 "to terminate all legal proceedings in United States courts involving claims of United States persons and institutions against Iran and its state enterprises, to nullify all attachments and judgments obtained therein, to prohibit all further litigation based on such claims, and to bring about the termination of such claims through binding arbitration." Id., at 22. 31 In addition, the United States must "act to bring about the transfer" by July 19, 1981, of all Iranian assets held in this country by American banks. Id., at 24-25. One billion dollars of these assets will be deposited in a security account in the Bank of England, to the account of the Algerian Central Bank, and used to satisfy awards rendered against Iran by the Claims Tribunal. Ibid. 32 On January 19, 1981, President Carter issued a series of Executive Orders implementing the terms of the agreement. Exec. Orders Nos. 12276-12285, 46 Fed.Reg. 7913-7932. These Orders revoked all licenses permitting the exercise of "any right, power, or privilege" with regard to Iranian funds, securities, or deposits; "nullified" all non-Iranian interests in such assets acquired subsequent to the blocking order of November 14, 1979; and required those banks holding Iranian assets to transfer them "to the Federal Reserve Bank of New York, to be held or transferred as directed by the Secretary of the Treasury." Exec. Order No. 12279, 46 Fed.Reg. 7919. 33 On February 24, 1981, President Reagan issued an Executive Order in which he "ratified" the January 19th Executive Orders. Exec. Order No. 12294, 46 Fed.Reg. 14111. Moreover, he "suspended" all "claims which may be presented to the . . . Tribunal" and provided that such claims "shall have no legal effect in any action now pending in any court of the United States." Ibid. The suspension of any particular claim terminates if the Claims Tribunal determines that it has no jurisdiction over that claim; claims are discharged for all purposes when the Claims Tribunal either awards some recovery and that amount is paid, or determines that no recovery is due. Ibid. 34 Meanwhile, on January 27, 1981, petitioner moved for summary judgment in the District Court against the Government of Iran and the Atomic Energy Organization, but not against the Iranian banks. The District Court granted petitioner's motion and awarded petitioner the amount claimed under the contract plus interest. Thereafter, petitioner attempted to execute the judgment by obtaining writs of garnishment and execution in state court in the State of Washington, and a sheriff's sale of Iranian property in Washington was noticed to satisfy the judgment. However, by order of May 28, 1981, as amended by order of June 8, the District Court stayed execution of its judgment pending appeal by the Government of Iran and the Atomic Energy Organization. The District Court also ordered that all prejudgment attachments obtained against the Iranian defendants be vacated and that further proceedings against the bank defendants be stayed in light of the Executive Orders discussed above. App. to Pet. for Cert. 106-107. 35 On April 28, 1981, petitioner filed this action in the District Court for declaratory and injunctive relief against the United States and the Secretary of the Treasury, seeking to prevent enforcement of the Executive Orders and Treasury Department regulations implementing the Agreement with Iran. In its complaint, petitioner alleged that the actions of the President and the Secretary of the Treasury implementing the Agreement with Iran were beyond their statutory and constitutional powers and, in any event, were unconstitutional to the extent they adversely affect petitioner's final judgment against the Government of Iran and the Atomic Energy Organization, its execution of that judgment in the State of Washington, its prejudgment attachments, and its ability to continue to litigate against the Iranian banks. Id., at 1-12. On May 28, 1981, the District Court denied petitioner's motion for a preliminary injunction and dismissed petitioner's complaint for failure to state a claim upon which relief could be granted. Id., at 106-107. Prior to the District Court's ruling, the United States Courts of Appeals for the First and the District of Columbia Circuits upheld the President's authority to issue the Executive Orders and regulations challenged by petitioner. See Chas. T. Main Int'l, Inc. v. Khuzestan Water & Power Authority, 651 F.2d 800 (CA1 1981); American Int'l Group, Inc. v. Islamic Republic of Iran, 211 U.S.App.D.C. 468, 657 F.2d 430 (1981). 36 On June 3, 1981, petitioner filed a notice of appeal from the District Court's order, and the appeal was docketed in the United States Court of Appeals for the Ninth Circuit. On June 4, the Treasury Department amended its regulations to mandate "the transfer of bank deposits and certain other financial assets of Iran in the United States to the Federal Reserve Bank of New York by noon, June 19." App. to Pet. for Cert. 151-152. The District Court, however, entered an injunction pending appeal prohibiting the United States from requiring the transfer of Iranian property that is subject to "any writ of attachment, garnishment, judgment, levy, or other judicial lien" issued by any court in favor of petitioner. Id., at 168. Arguing that this is a case of "imperative public importance," petitioner then sought a writ of certiorari before judgment. Pet. for Cert. 10. See 28 U.S.C. § 2101(e); this Court's Rule 18. Because the issues presented here are of great significance and demand prompt resolution, we granted the petition for the writ, adopted an expedited briefing schedule, and set the case for oral argument on June 24, 1981. 452 U.S. 932, 101 S.Ct. 3071, 69 L.Ed.2d 434 (1981). II 37 The parties and the lower courts, confronted with the instant questions, have all agreed that much relevant analysis is contained in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). Justice Black's opinion for the Court in that case, involving the validity of President Truman's effort to seize the country's steel mills in the wake of a nationwide strike, recognized that "[t]he President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself." Id., at 585, 72 S.Ct. at 864. Justice Jackson's concurring opinion elaborated in a general way the consequences of different types of interaction between the two democratic branches in assessing Presidential authority to act in any given case. When the President acts pursuant to an express or implied authorization from Congress, he exercises not only his powers but also those delegated by Congress. In such a case the executive action "would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it." Id., at 637, 72 S.Ct., at 871. When the President acts in the absence of congressional authorization he may enter "a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain." Ibid. In such a case the analysis becomes more complicated, and the validity of the President's action, at least so far as separation-of-powers principles are concerned, hinges on a consideration of all the circumstances which might shed light on the views of the Legislative Branch toward such action, including "congressional inertia, indifference or quiescence." Ibid. Finally, when the President acts in contravention of the will of Congress, "his power is at its lowest ebb," and the Court can sustain his actions "only by disabling the Congress from acting upon the subject." Id., at 637-638, 72 S.Ct., at 871-872. 38 Although we have in the past found and do today find Justice Jackson's classification of executive actions into three general categories analytically useful, we should be mindful of Justice Holmes' admonition, quoted by Justice Frankfurter in Youngstown, supra, at 597, 72 S.Ct., at 890 (concurring opinion), that "[t]he great ordinances of the Constitution do not establish and divide fields of black and white." Springer v. Philippine Islands, 277 U.S. 189, 209, 48 S.Ct. 480, 485, 72 L.Ed. 845 (1928) (dissenting opinion). Justice Jackson himself recognized that his three categories represented "a somewhat over-simplified grouping," 343 U.S., at 635, 72 S.Ct., at 870, and it is doubtless the case that executive action in any particular instance falls, not neatly in one of three pigeonholes, but rather at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition. This is particularly true as respects cases such as the one before us, involving responses to international crises the nature of which Congress can hardly have been expected to anticipate in any detail. III 39 In nullifying post-November 14, 1979, attachments and directing those persons holding blocked Iranian funds and securities to transfer them to the Federal Reserve Bank of New York for ultimate transfer to Iran, President Carter cited five sources of express or inherent power. The Government, however, has principally relied on § 203 of the IEEPA, 91 Stat. 1626, 50 U.S.C. § 1702(a)(1) (1976 ed., Supp. III), as authorization for these actions. Section 1702(a)(1) provides in part: 40 "At the times and to the extent specified in section 1701 of this title, the President may, under such regulations as he may prescribe, by means of instructions, licenses, or otherwise— 41 "(A) investigate, regulate, or prohibit— 42 "(i) any transactions in foreign exchange, 43 "(ii) transfers of credit or payments between, by, through, or to any banking institution, to the extent that such transfers or payments involve any interest of any foreign country or a national thereof, 44 "(iii) the importing or exporting of currency or securities, and 45 "(B) investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest; 46 "by any person, or with respect to any property, subject to the jurisdiction of the United States." 47 The Government contends that the acts of "nullifying" the attachments and ordering the "transfer" of the frozen assets are specifically authorized by the plain language of the above statute. The two Courts of Appeals that have considered the issue agreed with this contention. In Chas. T. Main Int'l, Inc. v. Khuzestan Water & Power Authority, the Court of Appeals for the First Circuit explained: 48 "The President relied on his IEEPA powers in November 1979, when he 'blocked' all Iranian assets in this country, and again in January 1981, when he 'nullified' interests acquired in blocked property, and ordered that property's transfer. The President's actions, in this regard, are in keeping with the language of IEEPA: initially he 'prevent[ed] and prohibit[ed]' 'transfers' of Iranian assets; later he 'direct[ed] and compel[led]' the 'transfer' and 'withdrawal' of the assets, 'nullify[ing]' certain 'rights' and 'privileges' acquired in them. 49 "Main argues that IEEPA does not supply the President with power to override judicial remedies, such as attachments and injunctions, or to extinguish 'interests' in foreign assets held by United States citizens. But we can find no such limitation in IEEPA's terms. The language of IEEPA is sweeping and unqualified. It provides broadly that the President may void or nullify the 'exercising [by any person of] any right, power or privilege with respect to . . . any property in which any foreign country has any interest. . . .' 50 U.S.C. § 1702(a)(1)(B)." 651 F.2d, at 806-807 (emphasis in original). 50 In American Int'l Group, Inc. v. Islamic Republic of Iran, the Court of Appeals for the District of Columbia Circuit employed a similar rationale in sustaining President Carter's action: 51 "The Presidential revocation of the license he issued permitting prejudgment restraints upon Iranian assets is an action that falls within the plain language of the IEEPA. In vacating the attachments, he acted to 'nullify [and] void . . . any . . . exercising any right, power, or privilege with respect to . . . any property in which any foreign country . . . has any interest . . . by any person . . . subject to the jurisdiction of the United States.' " 211 U.S.App.D.C., at 477, 657 F.2d, at 439 (footnote omitted). 52 Petitioner contends that we should ignore the plain language of this statute because an examination of its legislative history as well as the history of § 5(b) of the Trading With the Enemy Act (hereinafter TWEA), 40 Stat. 411, as amended, 50 U.S.C. App. § 5(b) (1976 ed. and Supp. III), from which the pertinent language of § 1702 is directly drawn, reveals that the statute was not intended to give the President such extensive power over the assets of a foreign state during times of national emergency. According to petitioner, once the President instituted the November 14, 1979, blocking order, § 1702 authorized him "only to continue the freeze or to discontinue controls." Brief for Petitioner 32. 53 We do not agree and refuse to read out of § 1702 all meaning to the words "transfer," "compel," or "nullify." Nothing in the legislative history of either § 1702 or § 5(b) of the TWEA requires such a result. To the contrary, we think both the legislative history and cases interpreting the TWEA fully sustain the broad authority of the Executive when acting under this congressional grant of power. See, e. g., Orvis v. Brownell, 345 U.S. 183, 73 S.Ct. 596, 97 L.Ed. 938 (1953).5 Although Congress intended to limit the President's emergency power in peacetime, we do not think the changes brought about by the enactment of the IEEPA in any way affected the authority of the President to take the specific actions taken here. We likewise note that by the time petitioner instituted this action, the President had already entered the freeze order. Petitioner proceeded against the blocked assets only after the Treasury Department had issued revocable licenses authorizing such proceedings and attachments. The Treasury Regulations provided that "unless licensed" any attachment is null and void, 31 CFR § 535.203(e) (1980), and all licenses "may be amended, modified, or revoked at any time." § 535.805. As such, the attachments obtained by petitioner were specifically made subordinate to further actions which the President might take under the IEEPA. Petitioner was on notice of the contingent nature of its interest in the frozen assets. 54 This Court has previously recognized that the congressional purpose in authorizing blocking orders is "to put control of foreign assets in the hands of the President. . . ." Propper v. Clark, 337 U.S. 472, 493, 69 S.Ct. 1333, 1345, 93 L.Ed. 1480 (1949). Such orders permit the President to maintain the foreign assets at his disposal for use in negotiating the resolution of a declared national emergency. The frozen assets serve as a "bargaining chip" to be used by the President when dealing with a hostile country. Accordingly, it is difficult to accept petitioner's argument because the practical effect of it is to allow individual claimants throughout the country to minimize or wholly eliminate this "bargaining chip" through attachments, garnishments, or similar encumbrances on property. Neither the purpose the statute was enacted to serve nor its plain language supports such a result.6 55 Because the President's action in nullifying the attachments and ordering the transfer of the assets was taken pursuant to specific congressional authorization, it is "supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it." Youngstown, 343 U.S., at 637, 72 S.Ct., at 871 (Jackson, J., concurring). Under the circumstances of this case, we cannot say that petitioner has sustained that heavy burden. A contrary ruling would mean that the Federal Government as a whole lacked the power exercised by the President, see id., at 636-637, 72 S.Ct., at 870-871, and that we are not prepared to say. IV 56 Although we have concluded that the IEEPA constitutes specific congressional authorization to the President to nullify the attachments and order the transfer of Iranian assets, there remains the question of the President's authority to suspend claims pending in American courts. Such claims have, of course, an existence apart from the attachments which accompanied them. In terminating these claims through Executive Order No. 12294 the President purported to act under authority of both the IEEPA and 22 U.S.C. § 1732, the so-called "Hostage Act."7 46 Fed.Reg. 14111 (1981). 57 We conclude that although the IEEPA authorized the nullification of the attachments, it cannot be read to authorize the suspension of the claims. The claims of American citizens against Iran are not in themselves transactions involving Iranian property or efforts to exercise any rights with respect to such property. An in personam lawsuit, although it might eventually be reduced to judgment and that judgment might be executed upon, is an effort to establish liability and fix damages and does not focus on any particular property within the jurisdiction. The terms of the IEEPA therefore do not authorize the President to suspend claims in American courts. This is the view of all the courts which have considered the question. Chas. T. Main Int'l, Inc. v. Khuzestan Water & Power Authority, 651 F.2d, at 809-814; American Int'l Group, Inc. v. Islamic Republic of Iran, 211 U.S.App.D.C., at 481, n. 15, 657 F.2d, at 443, n. 15; The Marschalk Co. v. Iran National Airlines Corp., 518 F.Supp. 69, 79 (SDNY 1981); Electronic Data Systems Corp. v. Social Security Organization of Iran, 508 F.Supp. 1350, 1361 (ND Tex. 1981). The Hostage Act, passed in 1868, provides: 58 "Whenever it is made known to the President that any citizen of the United States has been unjustly deprived of his liberty by or under the authority of any foreign government, it shall be the duty of the President forthwith to demand of that government the reasons of such imprisonment; and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen, and if the release so demanded is unreasonably delayed or refused, the President shall use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release; and all the facts and proceedings relative thereto shall as soon as practicable be communicated by the President to Congress." Rev.Stat. § 2001, 22 U.S.C. § 1732. 59 We are reluctant to conclude that this provision constitutes specific authorization to the President to suspend claims in American courts. Although the broad language of the Hostage Act suggests it may cover this case, there are several difficulties with such a view. The legislative history indicates that the Act was passed in response to a situation unlike the recent Iranian crisis. Congress in 1868 was concerned with the activity of certain countries refusing to recognize the citizenship of naturalized Americans traveling abroad, and repatriating such citizens against their will. See, e. g., Cong. Globe, 40th Cong., 2d Sess., 4331 (1868) (Sen. Fessenden); id., at 4354 (Sen. Conness); see also 22 U.S.C. § 1731. These countries were not interested in returning the citizens in exchange for any sort of ransom. This also explains the reference in the Act to imprisonment "in violation of the rights of American citizenship." Although the Iranian hostage-taking violated international law and common decency, the hostages were not seized out of any refusal to recognize their American citizenship—they were seized precisely because of their American citizenship. The legislative history is also somewhat ambiguous on the question whether Congress contemplated Presidential action such as that involved here or rather simply reprisals directed against the offending foreign country and its citizens. See, e. g., Cong. Globe, 40th Cong., 2d Sess., 4205 (1868); American Int'l Group, Inc. v. Islamic Republic of Iran, supra, at 490-491, 657 F.2d, at 452-453 (opinion of Mikva, J.). 60 Concluding that neither the IEEPA nor the Hostage Act constitutes specific authorization of the President's action suspending claims, however, is not to say that these statutory provisions are entirely irrelevant to the question of the validity of the President's action. We think both statutes highly relevant in the looser sense of indicating congressional acceptance of a broad scope for executive action in circumstances such as those presented in this case. As noted in Part III, supra, at 670-672, the IEEPA delegates broad authority to the President to act in times of national emergency with respect to property of a foreign country. The Hostage Act similarly indicates congressional willingness that the President have broad discretion when responding to the hostile acts of foreign sovereigns. As Senator Williams, draftsman of the language eventually enacted as the Hostage Act, put it: 61 "If you propose any remedy at all, you must invest the Executive with some discretion, so that he may apply the remedy to a case as it may arise. As to England or France he might adopt one policy to relieve a citizen imprisoned by either one of those countries; as to the Barbory powers, he might adopt another policy; as to the islands of the ocean, another. With different countries that have different systems of government he might adopt different means." Cong. Globe, 40th Cong., 2d Sess., 4359 (1868). 62 Proponents of the bill recognized that it placed a "loose discretion" in the President's hands, id., at 4238 (Sen. Stewart), but argued that "[s]omething must be intrusted to the Executive" and that "[t]he President ought to have the power to do what the exigencies of the case require to rescue [a] citizen from imprisonment." Id., at 4233, 4357 (Sen. Williams). An original version of the Act, which authorized the President to suspend trade with a foreign country and even arrest citizens of that country in the United States in retaliation, was rejected because "there may be a great variety of cases arising where other and different means would be equally effective, and where the end desired could be accomplished without resorting to such dangerous and violent measures." Id., at 4233 (Sen. Williams). 63 Although we have declined to conclude that the IEEPA or the Hostage Act directly authorizes the President's suspension of claims for the reasons noted, we cannot ignore the general tenor of Congress' legislation in this area in trying to determine whether the President is acting alone or at least with the acceptance of Congress. As we have noted, Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he might act. Such failure of Congress specifically to delegate authority does not, "especially . . . in the areas of foreign policy and national security," imply "congressional disapproval" of action taken by the Executive. Haig v. Agee, 453 U.S. 280, 291, 101 S.Ct. 2766, 2774, 69 L.Ed.2d 640. On the contrary, the enactment of legislation closely related to the question of the President's authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to "invite" "measures on independent presidential responsibility," Youngstown, 343 U.S., at 637, 72 S.Ct., at 871 (Jackson, J., concurring). At least this is so where there is no contrary indication of legislative intent and when, as here, there is a history of congressional acquiescence in conduct of the sort engaged in by the President. It is to that history which we now turn. 64 Not infrequently in affairs between nations, outstanding claims by nationals of one country against the government of another country are "sources of friction" between the two sovereigns. United States v. Pink, 315 U.S. 203, 225, 62 S.Ct. 552, 563, 86 L.Ed. 796 (1942). To resolve these difficulties, nations have often entered into agreements settling the claims of their respective nationals. As one treatise writer puts it, international agreements settling claims by nationals of one state against the government of another "are established international practice reflecting traditional international theory." L. Henkin, Foreign Affairs and the Constitution 262 (1972). Consistent with that principle, the United States has repeatedly exercised its sovereign authority to settle the claims of its nationals against foreign countries. Though those settlements have sometimes been made by treaty, there has also been a longstanding practice of settling such claims by executive agreement without the advice and consent of the Senate.8 Under such agreements, the President has agreed to renounce or extinguish claims of United States nationals against foreign governments in return for lump-sum payments or the establishment of arbitration procedures. To be sure, many of these settlements were encouraged by the United States claimants themselves, since a claimant's only hope of obtaining any payment at all might lie in having his Government negotiate a diplomatic settlement on his behalf. But it is also undisputed that the "United States has sometimes disposed of the claims of its citizens without their consent, or even without consultation with them, usually without exclusive regard for their interests, as distinguished from those of the nation as a whole." Henkin, supra, at 262-263. Accord, Restatement (Second) of Foreign Relations Law of the United States § 213 (1965) (President "may waive or settle a claim against a foreign state . . . [even] without the consent of the [injured] national"). It is clear that the practice of settling claims continues today. Since 1952, the President has entered into at least 10 binding settlements with foreign nations, including an $80 million settlement with the People's Republic of China.9 65 Crucial to our decision today is the conclusion that Congress has implicitly approved the practice of claim settlement by executive agreement. This is best demonstrated by Congress' enactment of the International Claims Settlement Act of 1949, 64 Stat. 13, as amended, 22 U.S.C. § 1621 et seq. (1976 ed. and Supp. IV). The Act had two purposes: (1) to allocate to United States nationals funds received in the course of an executive claims settlement with Yugoslavia, and (2) to provide a procedure whereby funds resulting from future settlements could be distributed. To achieve these ends Congress created the International Claims Commission, now the Foreign Claims Settlement Commission, and gave it jurisdiction to make final and binding decisions with respect to claims by United States nationals against settlement funds. 22 U.S.C. § 1623(a). By creating a procedure to implement future settlement agreements, Congress placed its stamp of approval on such agreements. Indeed, the legislative history of the Act observed that the United States was seeking settlements with countries other than Yugoslavia and that the bill contemplated settlements of a similar nature in the future. H.R.Rep. No. 770, 81st Cong., 1st Sess., 4, 8 (1949). 66 Over the years Congress has frequently amended the International Claims Settlement Act to provide for particular problems arising out of settlement agreements, thus demonstrating Congress' continuing acceptance of the President's claim settlement authority. With respect to the Executive Agreement with the People's Republic of China, for example, Congress established an allocation formula for distribution of the funds received pursuant to the Agreement. 22 U.S.C. § 1627(f) (1976 ed. and Supp. IV). As with legislation involving other executive agreements, Congress did not question the fact of the settlement or the power of the President to have concluded it. In 1976, Congress authorized the Foreign Claims Settlement Commission to adjudicate the merits of claims by United States nationals against East Germany, prior to any settlement with East Germany, so that the Executive would "be in a better position to negotiate an adequate settlement . . . of these claims." S.Rep. No. 94-1188, p. 2 (1976), U. S. Code Cong. & Admin. News, 1976, pp. 5582, 5583; 22 U.S.C. § 1644b. Similarly, Congress recently amended the International Claims Settlement Act to facilitate the settlement of claims against Vietnam. 22 U.S.C. §§ 1645, 1645a(5) (1976 ed., Supp. IV). The House Report stated that the purpose of the legislation was to establish an official inventory of losses of private United States property in Vietnam so that recovery could be achieved "through future direct Government-to-Government negotiation of private property claims." H.R.Rep. No. 96-915, pp. 2-3, U. S. Code Cong. & Admin. News, 1980, pp. 7328, 7329-7330. Finally, the legislative history of the IEEPA further reveals that Congress has accepted the authority of the Executive to enter into settlement agreements. Though the IEEPA was enacted to provide for some limitation on the President's emergency powers, Congress stressed that "[n]othing in this act is intended . . . to interfere with the authority of the President to [block assets], or to impede the settlement of claims of U. S. citizens against foreign countries." S.Rep. No. 95-466, p. 6 (1977), U. S. Code Cong. & Admin. News, 1977, pp. 4540, 4544; 50 U.S.C. § 1706(a)(1) (1976 ed., Supp. III).10 67 In addition to congressional acquiescence in the President's power to settle claims, prior cases of this Court have also recognized that the President does have some measure of power to enter into executive agreements without obtaining the advice and consent of the Senate. In United States v. Pink, 315 U.S. 203, 62 S.Ct. 552, 86 L.Ed. 796 (1942), for example, the Court upheld the validity of the Litvinov Assignment, which was part of an Executive Agreement whereby the Soviet Union assigned to the United States amounts owed to it by American nationals so that outstanding claims of other American nationals could be paid. The Court explained that the resolution of such claims was integrally connected with normalizing United States' relations with a foreign state: 68 "Power to remove such obstacles to full recognition as settlement of claims of our nationals . . . certainly is a modest implied power of the President. . . . No such obstacle can be placed in the way of rehabilitation of relations between this country and another nation, unless the historic conception of the powers and responsibilities . . . is to be drastically revised." Id., at 229-230, 62 S.Ct., at 565-566. Similarly, Judge Learned Hand recognized: 69 "The constitutional power of the President extends to the settlement of mutual claims between a foreign government and the United States, at least when it is an incident to the recognition of that government; and it would be unreasonable to circumscribe it to such controversies. The continued mutual amity between the nation and other powers again and again depends upon a satisfactory compromise of mutual claims; the necessary power to make such compromises has existed from the earliest times and been exercised by the foreign offices of all civilized nations." Ozanic v. United States, 188 F.2d 228, 231 (CA2 1951). 70 Petitioner raises two arguments in opposition to the proposition that Congress has acquiesced in this longstanding practice of claims settlement by executive agreement. First, it suggests that all pre-1952 settlement claims, and corresponding court cases such as Pink, should be discounted because of the evolution of the doctrine of sovereign immunity. Petitioner observes that prior to 1952 the United States adhered to the doctrine of absolute sovereign immunity, so that absent action by the Executive there simply would be no remedy for a United States national against a foreign government. When the United States in 1952 adopted a more restrictive notion of sovereign immunity, by means of the so-called "Tate" letter, it is petitioner's view that United States nationals no longer needed executive aid to settle claims and that, as a result, the President's authority to settle such claims in some sense "disappeared." Though petitioner's argument is not wholly without merit, it is refuted by the fact that since 1952 there have been at least 10 claims settlements by executive agreement. Thus, even if the pre-1952 cases should be disregarded, congressional acquiescence in settlement agreements since that time supports the President's power to act here. 71 Petitioner next asserts that Congress divested the President of the authority to settle claims when it enacted the Foreign Sovereign Immunities Act of 1976 (hereinafter FSIA), 28 U.S.C. §§ 1330, 1602 et seq. The FSIA granted personal and subject-matter jurisdiction in the federal district courts over commercial suits brought by claimants against those foreign states which have waived immunity. 28 U.S.C. § 1330. Prior to the enactment of the FSIA, a foreign government's immunity to suit was determined by the Executive Branch on a case-by-case basis. According to petitioner, the principal purpose of the FSIA was to depoliticize these commercial lawsuits by taking them out of the arena of foreign affairs—where the Executive Branch is subject to the pressures of foreign states seeking to avoid liability through a grant of immunity—and by placing them within the exclusive jurisdiction of the courts. Petitioner thus insists that the President, by suspending its claims, has circumscribed the jurisdiction of the United States courts in violation of Art. III of the Constitution. 72 We disagree. In the first place, we do not believe that the President has attempted to divest the federal courts of jurisdiction. Executive Order No. 12294 purports only to "suspend" the claims, not divest the federal court of "jurisdiction." As we read the Executive Order, those claims not within the jurisdiction of the Claims Tribunal will "revive" and become judicially enforceable in United States courts. This case, in short, illustrates the difference between modifying federal-court jurisdiction and directing the courts to apply a different rule of law. See United States v. Schooner Peggy, 1 Cranch 103, 2 L.Ed. 49 (1801). The President has exercised the power, acquiesced in by Congress, to settle claims and, as such, has simply effected a change in the substantive law governing the lawsuit. Indeed, the very example of sovereign immunity belies petitioner's argument. No one would suggest that a determination of sovereign immunity divests the federal courts of "jurisdiction." Yet, petitioner's argument, if accepted, would have required courts prior to the enactment of the FSIA to reject as an encroachment on their jurisdiction the President's determination of a foreign state's sovereign immunity. 73 Petitioner also reads the FSIA much too broadly. The principal purpose of the FSIA was to codify contemporary concepts concerning the scope of sovereign immunity and withdraw from the President the authority to make binding determinations of the sovereign immunity to be accorded foreign states. See Chas. T. Main Int'l, Inc. v. Khuzestan Water & Power Authority, 651 F.2d, at 813-814; American Int'l Group, Inc. v. Islamic Republic of Iran, 211 U.S.App.D.C., at 482, 657 F.2d, at 444. The FSIA was thus designed to remove one particular barrier to suit, namely sovereign immunity, and cannot be fairly read as prohibiting the President from settling claims of United States nationals against foreign governments. It is telling that the Congress which enacted the FSIA considered but rejected several proposals designed to limit the power of the President to enter into executive agreements, including claims settlement agreements.11 It is quite unlikely that the same Congress that rejected proposals to limit the President's authority to conclude executive agreements sought to accomplish that very purpose sub silentio through the FSIA. And, as noted above, just one year after enacting the FSIA, Congress enacted the IEEPA, where the legislative history stressed that nothing in the IEEPA was to impede the settlement of claims of United States citizens. It would be surprising for Congress to express this support for settlement agreements had it intended the FSIA to eliminate the President's authority to make such agreements. 74 In light of all of the foregoing—the inferences to be drawn from the character of the legislation Congress has enacted in the area, such as the IEEPA and the Hostage Act, and from the history of acquiescence in executive claims settlement—we conclude that the President was authorized to suspend pending claims pursuant to Executive Order No. 12294. As Justice Frankfurter pointed out in Youngstown, 343 U.S., at 610-611, 72 S.Ct., at 897-898, "a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned . . . may be treated as a gloss on 'Executive Power' vested in the President by § 1 of Art. II." Past practice does not, by itself, create power, but "long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the [action] had been [taken] in pursuance of its consent. . . ." United States v. Midwest Oil Co., 236 U.S. 459, 474, 35 S.Ct. 309, 313, 59 L.Ed. 673 (1915). See Haig v. Agee, 453 U.S., at 291, 292, 101 S.Ct., at 2774. Such practice is present here and such a presumption is also appropriate. In light of the fact that Congress may be considered to have consented to the President's action in suspending claims, we cannot say that action exceeded the President's powers. 75 Our conclusion is buttressed by the fact that the means chosen by the President to settle the claims of American nationals provided an alternative forum, the Claims Tribunal, which is capable of providing meaningful relief. The Solicitor General also suggests that the provision of the Claims Tribunal will actually enhance the opportunity for claimants to recover their claims, in that the Agreement removes a number of jurisdictional and procedural impediments faced by claimants in United States courts. Brief for Federal Respondents 13-14. Although being overly sanguine about the chances of United States claimants before the Claims Tribunal would require a degree of naivete which should not be demanded even of judges, the Solicitor General's point cannot be discounted. Moreover, it is important to remember that we have already held that the President has the statutory authority to nullify attachments and to transfer the assets out of the country. The President's power to do so does not depend on his provision of a forum whereby claimants can recover on those claims. The fact that the President has provided such a forum here means that the claimants are receiving something in return for the suspension of their claims, namely, access to an international tribunal before which they may well recover something on their claims. Because there does appear to be a real "settlement" here, this case is more easily analogized to the more traditional claim settlement cases of the past. 76 Just as importantly, Congress has not disapproved of the action taken here. Though Congress has held hearings on the Iranian Agreement itself,12 Congress has not enacted legislation, or even passed a resolution, indicating its displeasure with the Agreement. Quite the contrary, the relevant Senate Committee has stated that the establishment of the Tribunal is "of vital importance to the United States." S.Rep.No.97-71, p. 5 (1981).13 We are thus clearly not confronted with a situation in which Congress has in some way resisted the exercise of Presidential authority. 77 Finally, we re-emphasize the narrowness of our decision. We do not decide that the President possesses plenary power to settle claims, even as against foreign governmental entities. As the Court of Appeals for the First Circuit stressed, "[t]he sheer magnitude of such a power, considered against the background of the diversity and complexity of modern international trade, cautions against any broader construction of authority than is necessary." Chas T. Main Int'l, Inc. v. Khuzestan Water & Power Authority, 651 F.2d, at 814. But where, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute between our country and another, and where, as here, we can conclude that Congress acquiesced in the President's action, we are not prepared to say that the President lacks the power to settle such claims. V 78 We do not think it appropriate at the present time to address petitioner's contention that the suspension of claims, if authorized, would constitute a taking of property in violation of the Fifth Amendment to the United States Constitution in the absence of just compensation.14 Both petitioner and the Government concede that the question whether the suspension of the claims constitutes a taking is not ripe for review. Brief for Petitioner 34, n. 32; Brief for Federal Respondents 65. Accord, Chas T. Main Int'l, Inc. v. Khuzenstan Water & Power Authority, supra, at 814-815; American Int'l Group, Inc. v. Islamic Republic of Iran, 211 U.S.App.D.C., at 485, 657 F.2d, at 447. However, this contention, and the possibility that the President's actions may effect a taking of petitioner's property, make ripe for adjudication the question whether petitioner will have a remedy at law in the Court of Claims under the Tucker Act, 28 U.S.C. § 1491 (1976 ed., Supp. III), in such an event. That the fact and extent of the taking in this case is yet speculative is inconsequential because "there must be at the time of taking 'reasonable, certain and adequate provision for obtaining compensation.' " Regional Rail Reorganization Act Cases, 419 U.S. 102, 124-125, 95 S.Ct. 335, 349, 42 L.Ed.2d 320 (1974), quoting Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 659, 10 S.Ct. 965, 971, 34 L.Ed. 295 (1890); see also Cities Service Co. v. McGrath, 342 U.S. 330, 335-336, 72 S.Ct. 334, 337-338, 96 L.Ed. 359 (1952); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 94, n. 39, 98 S.Ct. 2620, 2641, n. 39, 57 L.Ed.2d 595 (1978). 79 It has been contended that the "treaty exception" to the jurisdiction of the Court of Claims, 28 U.S.C. § 1502, might preclude the Court of Claims from exercising jurisdiction over any takings claim the petitioner might bring. At oral argument, however, the Government conceded that § 1502 would not act as a bar to petitioner's action in the Court of Claims. Tr. of Oral Arg. 39-42, 47. We agree. See United States v. Weld, 127 U.S. 51, 8 S.Ct. 1000, 32 L.Ed. 62 (1888); United States v. Old Settlers, 148 U.S. 427, 13 S.Ct. 650, 37 L.Ed. 509 (1893); Hughes Aircraft Co. v. United States, 534 F.2d 889, 209 Ct.Cl. 446 (1976). Accordingly, to the extent petitioner believes it has suffered an unconstitutional taking by the suspension of the claims, we see no jurisdictional obstacle to an appropriate action in the United States Court of Claims under the Tucker Act. 80 The judgment of the District Court is accordingly affirmed, and the mandate shall issue forthwith. 81 It is so ordered. 82 Justice STEVENS, concurring in part. 83 In my judgment the possibility that requiring this petitioner to prosecute its claim in another forum will constitute an unconstitutional "taking" is so remote that I would not address the jurisdictional question considered in Part V of the Court's opinion. However, I join the remainder of the opinion. 84 Justice POWELL, concurring and dissenting in part. 85 I join the Court's opinion except its decision that the nullification of the attachments did not effect a taking of property interests giving rise to claims for just compensation. Ante, at 674, n. 6. The nullification of attachments presents a separate question from whether the suspension and proposed settlement of claims against Iran may constitute a taking. I would leave both "taking" claims open for resolution on a case-by-case basis in actions before the Court of Claims. The facts of the hundreds of claims pending against Iran are not known to this Court and may differ from the facts in this case. I therefore dissent from the Court's decision with respect to attachments. The decision may well be erroneous,1 and it certainly is premature with respect to many claims. 86 I agree with the Court's opinion with respect to the suspension and settlement of claims against Iran and its instrumentalities. The opinion makes clear that some claims may not be adjudicated by the Claims Tribunal and that others may not be paid in full. The Court holds that parties whose valid claims are not adjudicated or not fully paid may bring a "taking" claim against the United States in the Court of Claims, the jurisdiction of which this Court acknowledges. The Government must pay just compensation when it furthers the Nation's foreign policy goals by using as "bargaining chips" claims lawfully held by a relatively few persons and subject to the jurisdiction of our courts.2 The extraordinary powers of the President and Congress upon which our decision rests cannot, in the circumstances of this case, displace the Just Compensation Clause of the Constitution. 1 Title 50 U.S.C. § 1701(a) (1976 ed., Supp. III) states that the President's authority under the Act "may be exercised to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat." Petitioner does not challenge President Carter's declaration of a national emergency. 2 Title 50 U.S.C. § 1702(a)(1)(B) (1976 ed., Supp. III) empowers the President to "investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest. . . ." 3 Title 31 CFR § 535.805 (1980) provides in full: "The provisions of this part and any rulings, licenses, authorizations, instructions, orders, or forms issued thereunder may be amended, modified, or revoked at any time." 4 The contract stated that any dispute incapable of resolution by agreement of the parties would be submitted to conciliation and that, if either party was unwilling to accept the results of conciliation, "the matter shall be decided finally by resort to the courts of Iran." Pet. for Cert. 7, n.2. In its complaint, which was based on breach of contract and related theories, petitioner alleged that it had sought a meeting with the Atomic Energy Organization for purposes of settling matters relating to the contract but that the Organization "has continually postponed [the] meeting and obviously does not intend that it take place." Complaint in Dames & Moore v. Atomic Energy Organization of Iran, No. CV 79-04918 LEW (Px) (CD Cal.), ¶ 27. 5 Petitioner argues that under the TWEA the President was given two powers: (1) the power temporarily to freeze or block the transfer of foreign-owned assets; and (2) the power summarily to seize and permanently vest title to foreign-owned assets. It is contended that only the "vesting" provisions of the TWEA gave the President the power permanently to dispose of assets and when Congress enacted the IEEPA in 1977 it purposefully did not grant the President this power. According to petitioner, the nullification of the attachments and the transfer of the assets will permanently dispose of the assets and would not even be permissible under the TWEA. We disagree. Although it is true the IEEPA does not give the President the power to "vest" or to take title to the assets, it does not follow that the President is not authorized under both the IEEPA and the TWEA to otherwise permanently dispose of the assets in the manner done here. Petitioner errs in assuming that the only power granted by the language used in both § 1702 and § 5(b) of the TWEA is the power temporarily to freeze assets. As noted above, the plain language of the statute defies such a holding. Section 1702 authorizes the President to "direct and compel" the "transfer, withdrawal, transportation, . . . or exportation of . . . any property in which any foreign country . . . has any interest. . . ." We likewise reject the contention that Orvis v. Brownell and Zittman v. McGrath, 341 U.S. 446, 71 S.Ct. 832, 95 L.Ed. 1096 (1951), grant petitioner the right to retain its attachments on the Iranian assets. To the contrary, we think Orvis supports the proposition that an American claimant may not use an attachment that is subject to a revocable license and that has been obtained after the entry of a freeze order to limit in any way the actions the President may take under § 1702 respecting the frozen assets. An attachment so obtained is in every sense subordinate to the President's power under the IEEPA. 6 Although petitioner concedes that the President could have forbidden attachments, it nevertheless argues that once he allowed them the President permitted claimants to acquire property interests in their attachments. Petitioner further argues that only the licenses to obtain the attachments were made revocable, not the attachments themselves. It is urged that the January 19, 1981, order revoking all licenses only affected petitioner's right to obtain future attachments. We disagree. As noted above, the regulations specifically provided that any attachment is null and void "unless licensed," and all licenses may be revoked at any time. Moreover, common sense defies petitioner's reading of the regulations. The President could hardly have intended petitioner and other similarly situated claimants to have the power to take control of the frozen assets out of his hands. Our construction of petitioner's attachments as being "revocable," "contingent," and "in every sense subordinate to the President's power under the IEEPA," in effect answers petitioner's claim that even if the President had the authority to nullify the attachments and transfer the assets, the exercise of such would constitute an unconstitutional taking of property in violation of the Fifth Amendment absent just compensation. We conclude that because of the President's authority to prevent or condition attachments, and because of the orders he issued to this effect, petitioner did not acquire any "property" interest in its attachments of the sort that would support a constitutional claim for compensation. 7 Judge Mikva, in his separate opinion in American Int'l Group, Inc. v. Islamic Republic of Iran, 211 U.S.App.D.C. 468, 490, 657 F.2d 430, 452 (1981), argued that the moniker "Hostage Act" was newly coined for purposes of this litigation. Suffice it to say that we focus on the language of 22 U.S.C. § 1732, not any shorthand description of it. See W. Shakespeare, Romeo and Juliet, Act II, scene 2, line 43 ("What's in a name?"). 8 At least since the case of the "Wilmington Packet" in 1799, Presidents have exercised the power to settle claims of United States nationals by executive agreement. See Lillich, The Gravel Amendment to the Trade Reform Act of 1974, 69 Am.J.Int'l L. 837, 844 (1975). In fact, during the period of 1817-1917, "no fewer than eighty executive agreements were entered into by the United States looking toward the liquidation of claims of its citizens." W. McClure, International Executive Agreements 53 (1941). See also 14 M. Whiteman, Digest of International Law 247 (1970). 9 Those agreements are [1979] 30 U.S.T. 1957 (People's Republic of China); [1976] 27 U.S.T. 3933 (Peru); [1976] 27 U.S.T. 4214 (Egypt); [1974] 25 U.S.T. 227 (Peru); [1973] 24 U.S.T. 522 (Hungary); [1969] 20 U.S.T. 2654 (Japan); [1965] 16 U.S.T. 1 (Yugoslavia); [1963] 14 U.S.T. 969 (Bulgaria); [1960] 11 U.S.T. 1953 (Poland); [1960] 11 U.S.T. 317 (Rumania). 10 Indeed, Congress has consistently failed to object to this longstanding practice of claim settlement by executive agreement, even when it has had an opportunity to do so. In 1972, Congress entertained legislation relating to congressional oversight of such agreements. But Congress took only limited action, requiring that the text of significant executive agreements be transmitted to Congress. 1 U.S.C. § 112b. In Haig v. Agee, 453 U.S. 280, 101 S.Ct. 2766, 69 L.Ed.2d 640, we noted that "[d]espite the longstanding and officially promulgated view that the Executive has the power to withhold passports for reasons of national security and foreign policy, Congress in 1978, 'though it once again enacted legislation relating to passports, left completely untouched the broad rule-making authority granted in the earlier Act.' " Id., at 301, 101 S.Ct., at 2779, quoting Zemel v. Rusk, 381 U.S. 1, 12, 85 S.Ct. 1271, 1278, 14 L.Ed.2d 179 (1965). Likewise in this case, Congress, though legislating in the area has left "untouched" the authority of the President to enter into settlement agreements. The legislative history of 1 U.S.C. § 112b further reveals that Congress has accepted the President's authority to settle claims. During the hearings on the bill, Senator Case, the sponsor of the Act, stated with respect to executive claim settlements: "I think it is a most interesting [area] in which we have accepted the right of the President, one individual, acting through his diplomatic force, to adjudicate and settle claims of American nationals against foreign countries. But that is a fact." Transmittal of Executive Agreements to Congress: Hearings on S. 596 before the Senate Committee on Foreign Relations, 92d Cong., 1st Sess., 74 (1971). 11 The rejected legislation would typically have required congressional approval of executive agreements before they would be considered effective. See Congressional Oversight of Executive Agreements: Hearings on S. 632 and S. 1251 before the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 243-261, 302-311 (1975); Congressional Review of International Agreements: Hearings before the Subcommittee on International Security and Scientific Affairs of the House Committee on International Relations, 94th Cong., 2d Sess., 167, 246 (1976). 12 See Hearings on the Iranian Agreements before the Senate Committee on Foreign Relations, 97th Cong., 1st Sess. (1981); Hearings on the Iranian Asset Settlement before the Senate Committee on Banking, Housing and Urban Affairs, 97th Cong., 1st Sess. (1981); Hearings on the Algerian Declarations before the House Committee on Foreign Affairs, 97th Cong., 1st Sess. (1981). 13 Contrast congressional reaction to the Iranian Agreements with congressional reaction to a 1973 Executive Agreement with Czechoslovakia. There the President sought to settle over $105 million in claims against Czechoslovakia for $20.5 million. Congress quickly demonstrated its displeasure by enacting legislation requiring that the Agreement be renegotiated. See Lillich, supra, n. 8, at 839-840. Though Congress has shown itself capable of objecting to executive agreements, it has rarely done so and has not done so in this case. 14 Though we conclude that the President has settled petitioner's claims against Iran, we do not suggest that the settlement has terminated petitioner's possible taking claim against the United States. We express no views on petitioner's claims that it has suffered a taking. 1 Even though the Executive Orders purported to make attachments conditional, there is a substantial question whether the Orders themselves may have effected a taking by making conditional the attachments that claimants against Iran otherwise could have obtained without condition. Moreover, because it is settled that an attachment entitling a creditor to resort to specific property for the satisfaction of a claim is a property right compensable under the Fifth Amendment, Armstrong v. United States, 364 U.S. 40, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960); Louisville Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593 (1935), there is a question whether the revocability of the license under which petitioner obtained its attachments suffices to render revocable the attachments themselves. See Marschalk Co. v. Iran National Airlines Corp., 518 F.Supp. 69 (SDNY 1981). 2 As the Court held in Armstrong v. United States, supra, at 49, 80 S.Ct., at 1569: "The 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." The Court unanimously reaffirmed this understanding of the Just Compensation Clause in the recent case of Agins v. City of Tiburon, 447 U.S. 255, 260-261, 100 S.Ct. 2138, 2141-2142, 65 L.Ed.2d 106 (1980).

34

453 U.S. 609 101 S.Ct. 2946 69 L.Ed.2d 884 COMMONWEALTH EDISON COMPANY et al., Appellants,v.State of MONTANA et al. No. 80-581. Argued March 30, 1981. Decided July 2, 1981. Rehearing Denied Aug. 28, 1981. See 453 U.S. 927, 102 S.Ct. 889. Syllabus Montana imposes a severance tax on each ton of coal mined in the State, including coal mined on federal land. The tax is levied at varying rates depending on the value, energy content, and method of extraction of the coal, and may equal, at a maximum, 30% of the "contract sales price." Appellants, certain Montana coal producers and 11 of their out of state utility company customers, sought refunds, in a Montana state court, of severance taxes paid under protest and declaratory and injunctive relief, contending that the tax was invalid under the Commerce and Supremacy Clauses of the United States Constitution. Without receiving any evidence, the trial court upheld the tax, and the Montana Supreme Court affirmed. Held : 1. The Montana severance tax does not violate the Commerce Clause. Pp. 614-629. (a) A state severance tax is not immunized from Commerce Clause scrutiny by a claim that the tax is imposed on goods prior to their entry into the stream of interstate commerce. Any contrary statements in Heisler v. Thomas Colliery Co., 260 U.S. 245, 43 S.Ct. 83, 67 L.Ed. 237, and its progeny are disapproved. The Montana tax must be evaluated under the test set forth in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S.Ct. 1076, 1079, 51 L.Ed.2d 326, whereby a state tax does not offend the Commerce Clause if it "is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to services provided by the State." Pp. 614-617. (b) Montana's tax comports with the requirements of the Complete Auto Transit test. The tax is not invalid under the third prong of the test on the alleged ground that it discriminates against interstate commerce because 90% of Montana coal is shipped to other States under contracts that shift the tax burden primarily to non-Montana utility companies and thus to citizens of other States. There is no real discrimination since the tax is computed at the same rate regardless of the final destination of the coal and the tax burden is borne according to the amount of coal consumed, not according to any distinction between in-state and out-of-state consumers. Nor is there any merit to appellants' contention that they are entitled to an opportunity to prove that the tax is not "fairly related to the services provided by the State" by showing that the amount of the taxes collected exceeds the value of the services provided to the coal mining industry. The fourth prong of the Complete Auto Transit test requires only that the measure of the tax be reasonably related to the extent of the taxpayer's contact with the State, since it is the activities or presence of the taxpayer in the State that may properly be made to bear a just share of the state tax burden. Because it is measured as a percentage of the value of the coal taken, the Montana tax, a general revenue tax, is in proper proportion to appellants' activities within the State and, therefore, to their enjoyment of the opportunities and protection which the State has afforded in connection with those activities, such as police and fire protection, the benefit of a trained work force, and the advantages of a civilized society. The appropriate level or rate of taxation is essentially a matter for legislative, not judicial, resolution. Pp. 617-629. 2. Nor does Montana's tax violate the Supremacy Clause. Pp. 629-636. (a) The tax is not invalid as being inconsistent with the Mineral Lands Leasing Act of 1920, as amended. Even assuming that the tax may reduce royalty payments to the Federal Government under leases executed in Montana, this fact alone does not demonstrate that the tax is inconsistent with the Act. Indeed, in § 32 of the Act, Congress expressly authorized the States to impose severance taxes on federal lessees without imposing any limits on the amount of such taxes. And there is nothing in the language or legislative history of the Act or its amendments to support appellants' assertion that Congress intended to maximize and capture through royalties all "economic rents" (the difference between the cost of production and the market price of the coal) from the mining of federal coal, and then to divide the proceeds with the State in accordance with the statutory formula. The history speaks in terms of securing a "fair return to the public" and if, as was held in Mid-Northern Oil Co. v. Walker, 268 U.S. 45, 45 S.Ct. 440, 69 L.Ed. 841, the States, under § 32, may levy and collect taxes as though the Federal Government were not concerned, the manner in which the Federal Government collects receipts from its lessees and then shares them with the States has no bearing on the validity of a state tax. Pp. 629-633. (b) The tax is not unconstitutional on the alleged ground that it frustrates national energy policies, reflected in several federal statutes, encouraging production and use of coal, and appellants are not entitled to a hearing to explore the contours of these national policies and to adduce evidence supporting their claim. General statements in federal statutes reciting the objective of encouraging the use of coal do not demonstrate a congressional intent to pre-empt all state legislation that may have an adverse impact on the use of coal. Nor is Montana's tax pre-empted by the Powerplant and Industrial Fuel Use Act of 1978. Section 601(a)(2) of that Act clearly contemplates the continued existence, not the pre-emption, of state severance taxes on coal. Furthermore, the legislative history of that section reveals that Congress enacted the provision with Montana's tax specifically in mind. Pp. 633-636. Mont., 615 P.2d 847, affirmed. William P. Rogers, for appellants. Michael T. Greely, Helena, Mont., for appellees. Justice MARSHALL delivered the opinion of the Court. 1 Montana, like many other States, imposes a severance tax on mineral production in the State. In this appeal, we consider whether the tax Montana levies on each ton of coal mined in the State, Mont.Code Ann. § 15-35-101 et seq. (1979), violates the Commerce and Supremacy Clauses of the United States Constitution. 2 * Buried beneath Montana are large deposits of low-sulfur coal, most of it on federal land. Since 1921, Montana has imposed a severance tax on the output of Montana coal mines, including coal mined on federal land. After commissioning a study of coal production taxes in 1974, see House Resolutions Nos. 45 and 93, Senate Resolution No. 83, 1974 Mont.Laws 1619-1620, 1653-1654, 1683-1684 (Mar. 14 and 16, 1974); Montana Legislative Council, Fossil Fuel Taxation (1974), in 1975, the Montana Legislature enacted the tax schedule at issue in this case. Mont.Code Ann. § 15-35-103 (1979). The tax is levied at varying rates depending on the value, energy content, and method of extraction of the coal, and may equal, at a maximum, 30% of the "contract sales price."1 Under the terms of a 1976 amendment to the Montana Constitution, after December 31, 1979, at least 50% of the revenues generated by the tax must be paid into a permanent trust fund, the principal of which may be appropriated only by a vote of three-fourths of the members of each house of the legislature. Mont.Const., Art. IX, § 5. 3 Appellants, 4 Montana coal producers and 11 of their out-of-state utility company customers, filed these suits in Montana state court in 1978. They sought refunds of over $5.4 million in severance taxes paid under protest, a declaration that the tax is invalid under the Supremacy and Commerce Clauses, and an injunction against further collection of the tax. Without receiving any evidence the court upheld the tax and dismissed the complaints. 4 On appeal, the Montana Supreme Court affirmed the judgment of the trial court. Mont., 615 P.2d 847 (1980). The Supreme Court held that the tax is not subject to scrutiny under the Commerce Clause2 because it is imposed on the severance of coal, which the court characterized as an intrastate activity preceding entry of the coal into interstate commerce. In this regard, the Montana court relied on this Court's decisions in Heisler v. Thomas Colliery Co., 260 U.S. 245, 43 S.Ct. 83, 67 L.Ed. 237 (1922), Oliver Iron Mining Co. v. Lord, 262 U.S. 172, 43 S.Ct. 526, 67 L.Ed. 929 (1923), and Hope Natural Gas Co. v. Hall, 274 U.S. 284, 47 S.Ct. 639, 71 L.Ed. 1049 (1927), which employed similar reasoning in upholding state severance taxes against Commerce Clause challenges. As an alternative basis for its resolution of the Commerce Clause issue, the Montana court held, as a matter of law, that the tax survives scrutiny under the four-part test articulated by this Court in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977). The Montana court also rejected appellants' Supremacy Clause3 challenge, concluding that appellants had failed to show that the Montana tax conflicts with any federal statute. 5 We noted probable jurisdiction, 449 U.S. 1033, 101 S.Ct. 607, 66 L.Ed.2d 494 (1980), to consider the important issues raised. We now affirm. II A. 6 As an initial matter, appellants assert that the Montana Supreme Court erred in concluding that the Montana tax is not subject to the strictures of the Commerce Clause. In appellants' view, Heisler's "mechanical" approach, which looks to whether a state tax is levied on goods prior to their entry into interstate commerce, no longer accurately reflects the law. Appellants contend that the correct analysis focuses on whether the challenged tax substantially affects interstate commerce, in which case it must be scrutinized under the Complete Auto Transit test. 7 We agree that Heisler's reasoning has been undermined by more recent cases. The Heisler analysis evolved at a time when the Commerce Clause was thought to prohibit the States from imposing any direct taxes on interstate commerce. See, e. g., Helson & Randolph v. Kentucky, 279 U.S. 245, 250-252, 49 S.Ct. 279, 280-81, 73 L.Ed. 683 (1929); Ozark Pipe Line Corp. v. Monier, 266 U.S. 555, 562, 45 S.Ct. 184, 185, 69 L.Ed. 439 (1925). Consequently, the distinction between intrastate activities and interstate commerce was crucial to protecting the States' taxing power.4 8 The Court has, however, long since rejected any suggestion that a state tax or regulation affecting interstate commerce is immune from Commerce Clause scrutiny because it attaches only to a "local" or intrastate activity. See Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 350, 97 S.Ct. 2434, 2445, 53 L.Ed.2d 383 (1977); Pike v. Bruce Church, Inc., 397 U.S. 137, 141-142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970); Nippert v. Richmond, 327 U.S. 416, 423-424, 66 S.Ct. 586, 589-90, 90 L.Ed. 760 (1946). Correspondingly, the Court has rejected the notion that state taxes levied on interstate commerce are per se invalid. See, e. g., Washington Revenue Dept. v. Association of Wash. Stevedoring Cos., 435 U.S. 734, 98 S.Ct. 1388, 55 L.Ed.2d 682 (1978); Complete Auto Transit, Inc. v. Brady, supra. In reviewing Commerce Clause challenges to state taxes, our goal has instead been to "establish a consistent and rational method of inquiry" focusing on "the practical effect of a challenged tax." Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S. 425, 443, 100 S.Ct. 1223, 1234, 63 L.Ed.2d 510 (1980). See Moorman Mfg. Co. v. Bair, 437 U.S. 267, 276-281, 98 S.Ct. 2340, 2346-48, 57 L.Ed.2d 197 (1978); Washington Revenue Dept. v. Association of Wash. Stevedor- ing Cos., supra, 435 U.S., at 743-751, 98 S.Ct., at 1395-99; Complete Auto Transit, Inc. v. Brady, supra, 430 U.S., at 277-279, 97 S.Ct., at 1078-79. We conclude that the same "practical" analysis should apply in reviewing Commerce Clause challenges to state severance taxes. 9 In the first place, there is no real distinction—in terms of economic effects—between severance taxes and other types of state taxes that have been subjected to Commerce Clause scrutiny.5 See, e. g., Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 74 S.Ct. 396, 98 L.Ed. 583 (1954); Joseph v. Carter & Weekes Stevedoring Co., 330 U.S. 422, 67 S.Ct. 815, 91 L.Ed. 993 (1947); Puget Sound Stevedoring Co. v. State Tax Comm'n, 302 U.S. 90, 58 S.Ct. 72, 82 L.Ed. 68 (1937), both overruled in Washington Revenue Dept. v. Association of Wash. Stevedoring Cos., supra.6 State taxes levied on a "local" activity preceding entry of the goods into interstate commerce may substantially affect interstate commerce, and this effect is the proper focus of Commerce Clause inquiry. See Mobil Oil Corp. v. Commissioner of Taxes, supra, at 443, 100 S.Ct., at 1234. Second, this Court has acknowledged that "a State has a significant interest in exacting from interstate commerce its fair share of the cost of state government," Washington Revenue Dept. v. Association of Wash. Stevedoring Cos., supra, 435 U.S., at 748, 98 S.Ct., at 1398. As the Court has stated, " '[e]ven interstate business must pay its way.' " Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 254, 58 S.Ct. 546, 548, 82 L.Ed. 823 (1938), quoting Postal Telegraph-Cable Co. v. Richmond, 249 U.S. 252, 259, 39 S.Ct. 265, 266, 63 L.Ed. 590 (1919). Consequently, the Heisler Court's concern that a loss of state taxing authority would be an inevitable result of subjecting taxes on "local" activities to Commerce Clause scrutiny is no longer tenable. 10 We therefore hold that a state severance tax is not immunized from Commerce Clause scrutiny by a claim that the tax is imposed on goods prior to their entry into the stream of interstate commerce. Any contrary statements in Heisler and its progeny are disapproved.7 We agree with appellants that the Montana tax must be evaluated under Complete Auto Transit § four-part test. Under that test, a state tax does not offend the Commerce Clause if it "is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to services provided by the State." 430 U.S., at 279, 97 S.Ct., at 1079. B 11 Appellants do not dispute that the Montana tax satisfies the first two prongs of the Complete Auto Transit test. As the Montana Supreme Court noted, "there can be no argument here that a substantial, in fact, the only nexus of the severance of coal is established in Montana." Mont., 615 P.2d, at 855. Nor is there any question here regarding apportionment or potential multiple taxation, for as the state court observed, "the severance can occur in no other state" and "no other state can tax the severance." Ibid. Appellants do contend, however, that the Montana tax is invalid under the third and fourth prongs of the Complete Auto Transit test. 12 Appellants assert that the Montana tax "discriminate[s] against interstate commerce" because 90% of Montana coal is shipped to other States under contracts that shift the tax burden primarily to non-Montana utility companies and thus to citizens of other States. But the Montana tax is computed at the same rate regardless of the final destination of the coal, and there is no suggestion here that the tax is administered in a manner that departs from this even-handed formula. We are not, therefore, confronted here with the type of differential tax treatment of interstate and intrastate commerce that the Court has found in other "discrimination" cases. See, e. g., Maryland v. Louisiana, 451 U.S. 725, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981); Boston Stock Exchange v. State Tax Comm'n, 429 U.S. 318, 97 S.Ct. 599, 50 L.Ed.2d 514 (1977); cf. Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 100 S.Ct. 2009, 64 L.Ed.2d 702 (1980); Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978). 13 Instead, the gravamen of appellants' claim is that a state tax must be considered discriminatory for purposes of the Commerce Clause if the tax burden is borne primarily by out-of-state consumers. Appellants do not suggest that this assertion is based on any of this Court's prior discriminatory tax cases. In fact, a similar claim was considered and rejected in Heisler. There, it was argued that Pennsylvania had a virtual monopoly of anthracite coal and that, because 80% of the coal was shipped out of State, the tax discriminated against and impermissibly burdened interstate commerce. 260 U.S., at 251-253, 43 S.Ct., at 84. The Court, however, dismissed these factors as "adventitious considerations." Id., at 259, 43 S.Ct., at 86. We share the Heisler Court's misgivings about judging the validity of a state tax by assessing the State's "monopoly" position or its "exportation" of the tax burden out of State. 14 The premise of our discrimination cases is that "[t]he very purpose of the Commerce Clause was to create an area of free trade among the several States." McLeod v. J. E. Dilworth Co., 322 U.S. 327, 330, 64 S.Ct. 1023, 1025, 88 L.Ed. 1304 (1944). See Hunt v. Washington Apple Advertising Comm'n, 432 U.S., at 350, 97 S.Ct., at 2445; Boston Stock Exchange v. State Tax Comm'n, supra, 429 U.S., at 328, 97 S.Ct., at 606. Under such a regime, the borders between the States are essentially irrelevant. As the Court stated in West v. Kansas Natural Gas Co., 221 U.S. 229, 255, 31 S.Ct. 564, 571, 55 L.Ed. 716 (1911), " 'in matters of foreign and interstate commerce there are no state lines.' " See Boston Stock Exchange v. State Tax Comm'n, supra, 429 U.S., at 331-332, 97 S.Ct., at 607-08. Consequently, to accept appellants' theory and invalidate the Montana tax solely because most of Montana's coal is shipped across the very state borders that ordinarily are to be considered irrelevant would require a significant and, in our view, unwarranted departure from the rationale of our prior discrimination cases. 15 Furthermore, appellants' assertion that Montana may not "exploit" its "monopoly" position by exporting tax burdens to other States, cannot rest on a claim that there is need to protect the out-of-state consumers of Montana coal from discriminatory tax treatment. As previously noted, there is no real discrimination in this case; the tax burden is borne according to the amount of coal consumed and not according to any distinction between in-state and out-of-state consumers. Rather, appellants assume that the Commerce Clause gives residents of one State a right of access at "reasonable" prices to resources located in another State that is richly endowed with such resources, without regard to whether and on what terms residents of the resource-rich State have access to the resources. We are not convinced that the Commerce Clause, of its own force, gives the residents of one State the right to control in this fashion the terms of resource development and depletion in a sister State. Cf. Philadelphia v. New Jersey, supra, at 626, 98 S.Ct., at 2536.8 16 In any event, appellants' discrimination theory ultimately collapses into their claim that the Montana tax is invalid under the fourth prong of theComplete Auto Transit test: that the tax is not "fairly related to the services provided by the State." 430 U.S., at 279, 97 S.Ct., at 1079. Because appellants concede that Montana may impose some severance tax on coal mined in the State,9 the only remaining foundation for their discrimination theory is a claim that the tax burden borne by the out-of-state consumers of Montana coal is excessive. This is, of course, merely a variant of appellants' assertion that the Montana tax does not satisfy the "fairly related" prong of the Complete Auto Transit test, and it is to this contention that we now turn. 17 Appellants argue that they are entitled to an opportunity to prove that the amount collected under the Montana tax is not fairly related to the additional costs the State incurs because of coal mining.10 Thus, appellants' objection is to the rate of the Montana tax, and even then, their only complaint is that the amount the State receives in taxes far exceeds the value of the services provided to the coal mining industry. In objecting to the tax on this ground, appellants may be assuming that the Montana tax is, in fact, intended to reimburse the State for the cost of specific services furnished to the coal mining industry. Alternatively, appellants could be arguing that a State's power to tax an activity connected to interstate commerce cannot exceed the value of the services specifically provided to the activity. Either way, the premise of appellants' argument is invalid. Furthermore, appellants have completely misunderstood the nature of the inquiry under the fourth prong of the Complete Auto Transit test. 18 The Montana Supreme Court held that the coal severance tax is "imposed for the general support of the government." Mont., 615 P.2d, at 856, and we have no reason to question this characterization of the Montana tax as a general revenue tax.11 Consequently, in reviewing appellants' contentions, we put to one side those cases in which the Court reviewed challenges to "user" fees or "taxes" that were designed and defended as a specific charge imposed by the State for the use of state-owned or state-provided transportation or other facilities and services. See, e. g., Evans- ville-Vanderburghs Airport Authority Dist. v. Delta Airlines, Inc., 405 U.S. 707, 92 S.Ct. 1349, 31 L.Ed.2d 620 (1972); Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1939); Ingels v. Morf, 300 U.S. 290, 57 S.Ct. 439, 81 L.Ed. 653 (1937).12 19 This Court has indicated that States have considerable latitude in imposing general revenue taxes. The Court has, for example, consistently rejected claims that the Due Process Clause of the Fourteenth Amendment stands as a barrier against taxes that are "unreasonable" or "unduly burdensome." See, e. g., Pittsburgh v. Alco Parking Corp., 417 U.S. 369, 94 S.Ct. 2291, 41 L.Ed.2d 132 (1974); Magnano Co. v. Hamilton, 292 U.S. 40, 54 S.Ct. 599, 78 L.Ed. 1109 (1934); Alaska Fish Salting & By-Products Co. v. Smith, 255 U.S. 44, 41 S.Ct. 219, 65 L.Ed. 489 (1921). Moreover, there is no requirement under the Due Process Clause that the amount of general revenue taxes collected from a particular activity must be reasonably related to the value of the services provided to the activity. Instead, our consistent rule has been: 20 "Nothing is more familiar in taxation than the imposition of a tax upon a class or upon individuals who enjoy no direct benefit from its expenditure, and who are not responsible for the condition to be remedied. 21 "A tax is not an assessment of benefits. It is, as we have said, a means of distributing the burden of the cost of government. The only benefit to which the taxpayer is constitutionally entitled is that derived from his enjoyment of the privileges of living in an organized society, established and safeguarded by the devotion of taxes to public purposes. Any other view would preclude the levying of taxes except as they are used to compensate for the burden on those who pay them, and would involve abandonment of the most fundamental principle of government—that it exists primarily to provide for the common good." Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 521-523 [57 S.Ct. 868, 878-879, 81 L.Ed. 1245 (1937) (citations and footnote omitted). 22 See St. Louis & S. W. R. Co. v. Nattin, 277 U.S. 157, 159, 48 S.Ct. 438, 72 L.Ed. 830 (1928); Thomas v. Gay, 169 U.S. 264, 280, 18 S.Ct. 340, 346, 42 L.Ed. 740 (1898). 23 There is no reason to suppose that this latitude afforded the States under the Due Process Clause is somehow divested by the Commerce Clause merely because the taxed activity has some connection to interstate commerce; particularly when the tax is levied on an activity conducted within the State. "The exploitation by foreign corporations [or consumers] of intrastate opportunities under the protection and encouragement of local government offers a basis for taxation as unrestricted as that for domestic corporations." Ford Motor Co. v. Beauchamp, 308 U.S. 331, 334-335, 60 S.Ct. 273, 275, 84 L.Ed. 304 (1939); see also Ott v. Mississippi Valley Barge Line Co., 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585 (1949). To accept appellants' apparent suggestion that the Commerce Clause prohibits the States from requiring an activity connected to interstate commerce to contribute to the general cost of providing governmental services, as distinct from those costs attributable to the taxed activity, would place such commerce in a privileged position. But as we recently reiterated, " '[i]t was not the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of state tax burden even though it in creases the cost of doing business.' " Colonial Pipeline Co. v. Traigle, 421 U.S. 100, 108, 95 S.Ct. 1538, 1543, 44 L.Ed.2d 1 (1975), quotingWestern Live Stock v. Bureau of Revenue, 303 U.S., at 254, 58 S.Ct., at 548. The "just share of state tax burden" includes sharing in the cost of providing "police and fire protection, the benefit of a trained work force, and 'the advantages of a civilized society.' " Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U.S. 207, 228, 100 S.Ct. 2109, 2123, 65 L.Ed.2d 66 (1980), quotingJapan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 445, 99 S.Ct. 1813, 1820, 60 L.Ed.2d 336 (1979). See Washington Revenue Dept. v. Association of Wash. Stevedoring Cos., 435 U.S., at 750-751, 98 S.Ct., at 1399; id., at 764, 98 S.Ct., at 1406 (POWELL, J., concurring in part and concurring in result); General Motors Corp. v. Washington, 377 U.S. 436, 440-441, 84 S.Ct. 1564, 1567-68, 12 L.Ed.2d 430 (1964). 24 Furthermore, there can be no question that Montana may constitutionally raise general revenue by imposing a severance tax on coal mined in the State. The entire value of the coal, before transportation, originates in the State, and mining of the coal depletes the resource base and wealth of the State, thereby diminishing a future source of taxes and economic activity.13 Cf. Maryland v. Louisiana, 451 U.S., at 758-759, 101 S.Ct., at 2135-2136. In many respects, a severance tax is like a real property tax, which has never been doubted as a legitimate means of raising revenue by the situs State (quite apart from the right of that or any other State to tax income derived from use of the property). See, e. g., Old Dominion S.S. Co. v. Virginia, 198 U.S. 299, 25 S.Ct. 686, 49 L.Ed. 1059 (1905); Western Union Telegraph Co. v. Missouri ex rel. Gottlieb, 190 U.S. 412, 23 S.Ct. 730, 47 L.Ed. 1116 (1903); Postal Telegraph-Cable Co. v. Adams, 155 U.S. 688, 15 S.Ct. 268, 39 L.Ed. 311 (1895). When, as here, a general revenue tax does not discriminate against interstate commerce and is apportioned to activities occurring within the State, the State "is free to pursue its own fiscal policies, unembarrassed by the Constitution, if by the practical operation of a tax the state has exerted its power in relation to opportunities which it has given, to protection which it has afforded, to benefits which it has conferred by the fact of being an orderly civilized society." Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444, 61 S.Ct. 246, 249, 85 L.Ed. 267 (1940). As we explained in General Motors Corp. v. Washington, supra, 377 U.S., at 440-441, 84 S.Ct., at 1567-1568: 25 "[T]he validity of the tax rests upon whether the State is exacting a constitutionally fair demand for that aspect of interstate commerce to which to bears a special relation. For our purposes, the decisive issue turns on the operating incidence of the tax. In other words, the question is whether the State has exerted its power in proper proportion to appellant's activities within the State and to appellant's consequent enjoyment of the opportunities and protections which the State has afforded. . . . As was said in Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444 [61 S.Ct. 246, 249, 85 L.Ed. 267] (1940), '[t]he simple but controlling question is whether the state has given anything for which it can ask return.' " 26 The relevant inquiry under the fourth prong of the Complete Auto Transit test14 is not as appellants suggest, the amount of the tax of the value of the benefits allegedly bestowed as measured by the costs the State incurs on account of the taxpayer's activities.15 Rather, the test is closely connected to the first prong of the Complete Auto Transit test. Under this threshold test, the interstate business must have a substantial nexus with the State before any tax may be levied on it. See National Bellas Hess, Inc. v. Illinois Revenue Dept., 386 U.S. 753, 87 S.Ct. 1389, 18 L.Ed.2d 505 (1967). Beyond that threshold requirement, the fourth prong of the Complete Auto Transit test imposes the additional limitation that the measure of the tax must be reasonably related to the extent of the contact, since it is the activities or presence of the taxpayer in the State that may properly be made to bear a "just share of state tax burden," Western Live Stock v. Bureau of Revenue, 303 U.S., at 254, 58 S.Ct., at 548. See National Geographic Society v. California Board of Equalization, 430 U.S. 551, 97 S.Ct. 1386, 51 L.Ed.2d 631 (1977); Standard Pressed Steel Co. v. Washington Revenue Dept., 419 U.S. 560, 95 S.Ct. 706, 42 L.Ed.2d 719 (1975). As the Court explained in Wisconsin v. J. C. Penney Co., supra, 311 U.S., at 446, 61 S.Ct., at 250 (emphasis added), "the incidence of the tax as well as its measure [must be] tied to the earnings which the State . . . has made possible, insofar as government is the prerequisite for the fruits of civilization for which, as Mr. Justice Holmes was fond of saying, we pay taxes." 27 Against this background, we have little difficulty concluding that the Montana tax satisfies the fourth prong of the Complete Auto Transit test. The "operating incidence" of the tax, see General Motors Corp. v. Washington, 377 U.S., at 440-441, 84 S.Ct., at 1567-1568, is on the mining of coal within Montana. Because it is measured as a percentage of the value of the coal taken, the Montana tax is in "proper proportion" to appellants' activities within the State and, therefore, to their "consequent enjoyment of the opportunities and protections which the State has afforded" in connection with those activities. Id., at 441, 84 S.Ct., at 1568. Cf. Nippert v. Richmond, 327 U.S., at 427, 66 S.Ct., at 591. When a tax is assessed in proportion to a taxpayer's activities or presence in a State, the taxpayer is shouldering its fair share of supporting the State's provision of "police and fire protection, the benefit of a trained work force, and 'the advantages of a civilized society.' " Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U.S., at 228, 100 S.Ct., at 2123, quoting Japan Line, Ltd. v. County of Los Angeles, 441 U.S., at 445, 99 S.Ct., at 1819-20. 28 Appellants argue, however, that the fourth prong of the Complete Auto Transit test must be construed as requiring a factual inquiry into the relationship between the revenues generated by a tax and costs incurred on account of the taxed activity, in order to provide a mechanism for judicial disapproval under the Commerce Clause of state taxes that are excessive. This assertion reveals that appellants labor under a misconception about a court's role in cases such as this.16 The simple fact is that the appropriate level or rate of taxation is essentially a matter for legislative, and not judicial, resolution.17 See Halson & Randolph v. Kentucky, 279 U.S. 245, 252, 49 S.Ct. 279, 281, 73 L.Ed. 683 (1929); cf. Pittsburgh v. Alco Parking Corp., 417 U.S. 369, 94 S.Ct. 2291, 41 L.Ed.2d 132 (1974); Magnano Co. v. Hamilton, 292 U.S. 40, 54 S.Ct. 599, 78 L.Ed. 1109 (1934). In essence, appellants ask this Court to prescribe a test for the validity of state taxes that would require state and federal courts, as a matter of federal constitutional law, to calculate acceptable rates or levels of taxation of activities that are conceded to be legitimate subjects of taxation. This we decline to do. 29 In the first place, it is doubtful whether any legal test could adequately reflect the numerous and competing economic, geographic, demographic, social, and political considerations that must inform a decision about an acceptable rate or level of state taxation, and yet be reasonably capable of application in a wide variety of individual cases. But even apart from the difficulty of the judicial undertaking, the nature of the factfinding and judgment that would be required of the courts merely reinforces the conclusion that questions about the appropriate level of state taxes must be resolved through the political process. Under our federal system, the determination is to be made by state legislatures in the first instance and, if necessary, by Congress, when particular state taxes are thought to be contrary to federal interests.18 Cf. Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S., at 448-449, 100 S.Ct., at 1237-38; Moorman Mfg. Co. v. Bair, 437 U.S., at 280, 98 S.Ct., at 2348. 30 Furthermore, the reference in the cases to police and fire protection and other advantages of civilized society is not, as appellants suggest, a disingenuous incantation designed to avoid a more searching inquiry into the relationship between the value of the benefits conferred on the taxpayer and the amount of taxes it pays. Rather, when the measure of a tax is reasonably related to the taxpayer's activities or presence in the State—from which it derives some benefit such as the substantial privilege of mining coal—the taxpayer will realize, in proper proportion to the taxes it pays, "[t]he only benefit to which the taxpayer is constitutionally entitled . . .[:] that derived from his enjoyment of the privileges of living in an organized society, established and safeguarded by the devotion of taxes to public purposes." Carmichael v. Southern Coal & Coke Co., 301 U.S., at 522, 57 S.Ct., at 878. Correspondingly, when the measure of a tax bears no relationship to the taxpayers' presence or activities in a State, a court may properly conclude under the fourth prong of the Complete Auto Transit test that the State is imposing an undue burden on interstate commerce. See Nippert v. Richmond, 327 U.S., at 427, 66 S.Ct., at 591; cf. Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 74 S.Ct. 396, 98 L.Ed. 583 (1954). We are satisfied that the Montana tax, assessed under a formula that relates the tax liability to the value of appellant coal producers' activities within the State, comports with the requirements of the Complete Auto Transit test. We therefore turn to appellants' contention that the tax is invalid under the Supremacy Clause. III A. 31 Appellants contend that the Montana tax, as applied to mining of federally owned coal, is invalid under the Supremacy Clause because it "substantially frustrates" the purposes of the Mineral Lands Leasing Act of 1920, ch. 85, 41 Stat. 437, 30 U.S.C. § 181 et seq. (1976 ed. and Supp.III) (1920 Act), as amended by the Federal Coal Leasing Amendments Act of 1975, Pub.L. 94-377, 90 Stat. 1083 (1975 Amendments). Appellants argue that under the 1920 Act, the "economic rents" attributable to the mining of coal on federal land—i. e., the difference between the cost of production (including a reasonable profit) and the market price of the coal—are to be captured by the Federal Government in the form of royalty payments from federal lessees. The payments thus received are then to be divided between the States and the Federal Government according to a formula prescribed by the Act.19 In appellants' view the Montana tax seriously undercuts and disrupts the 1920 Act's division of revenues between the Federal and State Governments by appropriating directly to Montana a major portion of the "economic rents." Appellants contend the Montana tax will alter the statutory scheme by causing potential coal producers to reduce the amount they are willing to bid in royalties on federal leases. 32 As an initial matter, we note that this argument rests on a factual premise—that the principal effect of the tax is to shift a major portion of the relatively fixed "economic rents" attributable to the extraction of federally owned coal from the Federal Treasury to the State of Montana—that appears to be inconsistent with the premise of appellants' Commerce Clause claims. In pressing their Commerce Clause arguments, appellants assert that the Montana tax increases the cost of Montana coal, thereby increasing the total amount of "economic rents," and that the burden of the tax is borne by out-of-state consumers, not the Federal Treasury.20 But even assuming that the Montana tax may reduce royalty payments to the Federal Government under leases executed in Montana, this fact alone hardly demonstrates that the tax is inconsistent with the 1920 Act. Indeed, appellants' argument is substantially undermined by the fact that in § 32 of the 1920 Act, 41 Stat. 450, 30 U.S.C. § 189, Congress expressly authorized the States to impose severance taxes on federal lessees without imposing any limits on the amount of such taxes. Section 32, as set forth in 30 U.S.C. § 189, provides in pertinent part: 33 "Nothing in this chapter shall be construed or held to affect the rights of the States or other local authority to exercise any rights which they may have, including the right to levy and collect taxes upon improvements, output of mines, or other rights, property, or assets of any lessee of the United States." 34 This Court had occasion to construe § 32 soon after it was enacted. The Court explained: 35 "Congress . . . meant by the proviso to say in effect that, although the act deals with the letting of public lands and the relations of the [federal] government to the lessees thereof, nothing in it shall be so construed as to affect the right of the states, in respect of such private persons and corporations, to levy and collect taxes as though the government were not concerned. . . . 36 * * * * * 37 "We think the proviso plainly discloses the intention of Congress that persons and corporations contracting with the United States under the act, should not, for that reason, be exempt from any form of state taxation other- iwise lawful." Mid-Northern Oil Co. v. Walker, 268 U.S. 45, 48-50, 45 S.Ct. 440, 441, 69 L.Ed. 841 (1925) (emphasis added). 38 It necessarily follows that if the Montana tax is "otherwise lawful," the 1920 Act does not forbid it. 39 Appellants contend that the Montana tax is not "otherwise lawful" because it conflicts with the very purpose of the 1920 Act. We do not agree. There is nothing in the language or legislative history of either the 1920 Act or the 1975 Amendments to support appellants' assertion that Congress intended to maximize and capture all "economic rents" from the mining of federal coal, and then to distribute the proceeds in accordance with the statutory formula. The House Report on the 1975 Amendments, for example, speaks only in terms of a congressional intent to secure a "fair return to the public." H.R.Rep. No. 94-681, pp. 17-18 (1975), U.S.Code Cong. & Admin.News, 1976, pp. 1943, 1953. Moreover, appellants' argument proves too much. By definition, any state taxation of federal lessees reduces the "economic rents" accruing to the Federal Government, and appellants' argument would preclude any such taxes despite the explicit grant of taxing authority to the States by § 32. Finally, appellants' contention necessarily depends on inferences to be drawn from §§ 7 and 35 of the 1920 Act, 30 U.S.C. §§ 207 and 191, which, as amended, prescribe the statutory formula for the division of the payments received by the Federal Government. See Complaint &Par; 38-41, J.S.App. 57a-58a. Yet § 32 of the 1920 Act, as set forth in 30 U.S.C. § 189, states that "[n]othing in this chapter"—which includes §§ 7 and 35—"shall be construed or held to affect the rights of the States . . . to levy and collect taxes upon . . . output of mines . . . of any lessee of the United States." And if, as the Court has held, the States may "levy and collect taxes as though the [federal] government were not concerned," Mid-Northern Oil Co. v. Walker, supra, at 49, 45 S.Ct., at 441, the manner in which the Federal Government collects receipts from its lessees and then shares them with the States has no bearing on the validity of a state tax. We therefore reject appellants' contention that the Montana tax must be invalidated as inconsistent with the Mineral Lands Leasing Act. B 40 The final issue we must consider is appellants' assertion that the Montana tax is unconstitutional because it substantially frustrates national energy policies, reflected in several federal statutes, encouraging the production and use of coal, particularly low-sulfur coal such as is found in Montana. Appellants insist that they are entitled to a hearing to explore the contours of these national policies and to adduce evidence supporting their claim that the Montana tax substantially frustrates and impairs the policies. 41 We cannot quarrel with appellants' recitation of federal statute encouraging the use of coal. Appellants correctly note that § 2(6) of the Energy Policy and Conservation Act of 1975, 89 Stat. 874, 42 U.S.C. § 6201(6), declares that one of the Act's purposes is "to reduce the demand for petroleum products and natural gas through programs designed to provide greater availability and use of this Nation's abundant coal resources." And § 102(b)(3) of the Powerplant and Industrial Fuel Use Act of 1978 (PIFUA), 92 Stat. 3291, 42 U.S.C. § 8301(b)(3) (1976 ed., Supp. III), recites a similar objective "to encourage and foster the greater use of coal and other alternate fuels, in lieu of natural gas and petroleum, as a primary energy source." We do not, however, accept appellants' implicit suggestion that these general statements demonstrate a congressional intent to pre-empt all state legislation that may have an adverse impact on the use of coal. In Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978), we rejected a pre-emption argument similar to the one appellants urge here. There, it was argued that the "basic national policy favoring free competition" reflected in the Sherman Act pre-empted a state law regulating retail distribution of gasoline. Id., at 133, 98 S.Ct., at 2217. The Court acknowledged the conflict between the state law and this national policy, but rejected the suggestion that the "broad implications" of the Sherman Act should be construed as a congressional decision to pre-empt the state law. Id., at 133-134, 98 S.Ct., at 2217-18. Cf. New Motor Vehicle Bd. of California v. Orrin W. Fox Co., 439 U.S. 96, 110-111, 99 S.Ct. 403, 412-13, 58 L.Ed.2d 361 (1978). As we have frequently indicated, "[p]re-emption of state law by federal statute or regulation is not favored 'in the absence of persuasive reasons—either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.' " Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317, 101 S.Ct. 1124, 1130, 67 L.Ed.2d 258 (1981), quoting Florida Lime & Avocado Growers, Inc., v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963). See Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 522, 101 S.Ct. 1895, 1905, 68 L.Ed.2d 402 (1981); Jones v. Rath Packing Co., 430 U.S. 519, 525-526, 97 S.Ct. 1305, 1309-10, 51 L.Ed.2d 604 (1977); Perez v. Campbell, 402 U.S. 637, 649, 91 S.Ct. 1704, 1711, 29 L.Ed.2d 233 (1971). In cases such as this, it is necessary to look beyond general expressions of "national policy" to specific federal statutes with which the state law is claimed to conflict.21 The only specific statutory provisions favoring the use of coal cited by appellants are those in PIFUA. 42 PIFUA prohibits new electric power plants or new major fuel-burning installations from using natural gas or petroleum as a primary energy source, and prohibits existing facilities from using natural gas as a primary energy source after 1989. 42 U.S.C. §§ 8311(1), 8312(a) (1976 ed., Supp.III). Appellants contend that "the manifest purpose of this Act to favor the use of coal is clear." Brief for Appellants 37. As the statute itself makes clear, however, Congress did not intend PIFUA to pre-empt state severance taxes on coal. Section 601(a)(1) of PIFUA, 92 Stat. 3323, 42 U.S.C. § 8401(a)(1) (1976 ed., Supp.III), provides for federal financial assistance to areas of a State adversely affected by increased coal or uranium mining, based upon findings by the Governor of the State that the state or local government lacks the financial resources to meet increased demand for housing or public services and facilities in such areas. Section 601(a)(2), 42 U.S.C. § 8401(a)(2) (1976 ed., Supp.III), then provides that 43 "increased revenues, including severance tax revenues, royalties, and similar fees to the State and local governments which are associated with the increase in coal or uranium development activities . . . shall be taken into account in determining if a State or local government lacks financial resources." 44 This section clearly contemplates the continued existence, not the pre-emption, of state severance taxes on coal and other minerals. 45 Furthermore, the legislative history of § 601(a)(2) reveals that Congress enacted this provision with Montana's tax specifically in mind. The Senate version of the PIFUA bill provided for impact aid, but the House bill did not. See H.R.Conf.Rep.No.95-1749, p. 93 (1978). The Senate's proposal for impact aid was opposed by the House conferees, who took the position that the States would be able to satisfy the demand for additional facilities and services caused by increased coal production through imposition of severance taxes and, in Western States, through royalties received under the Mineral Lands Leasing Act. See Transcript of the Joint Conference on Energy 1822, 1824, 1832, 1834-1837, 1839 (1977) (Tr.), reprinted in 2 U.S. Dept. of Energy, Legislative History: Powerplant and Industrial Fuel Use Act, 777, 779, 787, 789-792, 794 (1978) (Legislative History). In explaining the objections of the House conferees, Representative Eckhardt pointed out: 46 "[T]he western states may collect severance taxes on that coal. 47 "As I pointed out [see Tr. 1822, Legislative History, at 777], Montana already collects $3 a ton on severance taxes on coal and still enjoys a 50 percent royalty return. As the price of coal goes up . . . these severance taxes in addition go up. 48 "This is a percentage tax, not a flat tax in most instances. 49 "If we are going to merely determine on the basis of impact on a particular community in a state how much money is going to go to that community, without taking into account how much that community is enriched, I think we are going to have people who are so angry at us in Congress . . . ." Tr. 1835, Legislative History, at 790. 50 Section 601(a)(2) was obviously included in PIFUA as a response to these concerns, for it provides that severance taxes and royalties are to be "taken into account" in determining eligibility for impact aid. The legislative history of § 601(a)(2) thus confirms what seems evident from the face of the statute—that Montana's severance tax is not pre-empted by PIFUA. Since PIFUA is the only federal statute that even comes close to providing a specific basis for appellants' claims that the Montana statute "substantially frustrates" federal energy policies, this aspect of appellants' Supremacy Clause argument must also fail.22 IV 51 In sum, we conclude that appellants have failed to demonstrate either that the Montana tax suffers from any of the constitutional defects alleged in their complaints, or that a trial is necessary to resolve the issue of the constitutionality of the tax. Consequently, the judgment of the Supreme Court of Montana is affirmed. 52 So ordered. 53 Justice WHITE, concurring. 54 This is a very troublesome case for me, and I join the Court's opinion with considerable doubt and with the realization that Montana's levy on consumers in other States may in the long run prove to be an intolerable and unacceptable burden on commerce. Indeed, there is particular force in the argument that the tax is here and now unconstitutional. Montana collects most of its tax from coal lands owned by the Federal Government and hence by all of the people of this country, while at the same time sharing equally and directly with the Federal Government all of the royalties reserved under the leases the United States has negotiated on its land in the State of Montana. This share is intended to compensate the State for the burdens that coal mining may impose upon it. Also, as Justice BLACKMUN cogently points out, post, at 643, n.9, another 40% of the federal revenue from mineral leases is indirectly returned to the States through a reclamation fund. In addition, there is statutory provision for federal grants to areas affected by increased coal production. 55 But this very fact gives me pause and counsels withholding our hand, at least for now. Congress has the power to protect interstate commerce from intolerable or even undesirable burdens. It is also very much aware of the Nation's energy needs, of the Montana tax, and of the trend in the energy-rich States to aggrandize their position and perhaps lessen the tax burdens on their own citizens by imposing unusually high taxes on mineral extraction. Yet, Congress is so far content to let the matter rest, and we are counseled by the Executive Branch through the Solicitor General not to overturn the Montana tax as inconsistent with either the Commerce Clause or federal statutory policy in the field of energy or otherwise. The constitutional authority and the machinery to thwart efforts such as those of Montana, if thought unacceptable, are available to Congress, and surely Montana and other similarly situated States do not have the political power to impose their will on the rest of the country. As I presently see it, therefore, the better part of both wisdom and valor is to respect the judgment of the other branches of the Government. I join the opinion and the judgment of the Court. 56 Justice BLACKMUN, with whom Justice POWELL and Justice STEVENS join, dissenting. 57 In Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977), a unanimous Court observed: "A tailored tax, however, accomplished, must receive the careful scrutiny of the courts to determine whether it produces a forbidden effect on interstate commerce." Id., at 288-289, n.15, 97 S.Ct., at 1084, n.15. In this case, appellants have alleged that Montana's severance tax on coal is tailored to single out interstate commerce, and that it produces a forbidden effect on that commerce because the tax bears no "relationship to the services provided by the State." Ibid. The Court today concludes that appellants are not entitled to a trial on this claim. Because I believe that the "careful scrutiny" due a tailored tax makes a trial here necessary, I respectfully dissent. 58 * The State of Montana has approximately 25% of all known United States coal reserves, and more than 50% of the Nation's low-sulfur coal reserves.1 Department of Energy, Demonstrated Reserve Base of Coal in the United States on January 1, 1979, p. 8 (1981); National Coal Assn., Coal Data 1978, p. I-6 (1980). Approximately 70-75% of Montana's coal lies under land owned by the Federal Government in the State. See Hearings on H.R.6625, H.R.6654, and H.R.7163 before the Subcommittee on Energy and Power of the House Committee on Interstate and Foreign Commerce, 96th Cong., 2d Sess. 22 (1980) (Hearings) (statement of Rep. Vento). The great bulk of the coal mined in Montana—indeed, allegedly as much as 90%, see ante, at 617-618—is exported to other States pursuant to long-term purchase contracts with out-of-state utilities. See H.R.Rep.No.96-1527, pt. 1, pp. 3-4 (1980). Those contracts typically provide that the costs of state taxation shall be passed on to the utilities; in turn, fuel adjustment clauses allow the utilities to pass the cost of taxation along to their consumers. Ibid. Because federal environmental legislation has increased the demand for low-sulfur coal, id., at 3, and because the Montana coal fields occupy a "pivotal" geographic position in the midwestern and northwestern energy markets, see J. Krutilla & A. Fisher with R. Rice, Economic and Fiscal Impacts of Coal Development: Northern Great Plains xvi (1978) (Krutilla), Montana has supplied an increasing percentage of the Nation's coal.2 59 In 1975, following the Arab oil embargo and the first federal coal conversion legislation, the Montana Legislature, by 1975 Mont.Laws, ch. 525, increased the State's severance tax on coal from a flat rate of approximately 34 cents per ton to a maximum rate of 30% of the "contract sales price." Mont.Code Ann. § 15-35-103 (1979).3 See H.R.Rep.No.96-1527, pt. 1, p. 3 (1980). The legislative history of this tax is illuminating. The Joint Conference Committees of the Montana Legislature that recommended this amendment acknowledged: "It is true that this is a higher rate of taxation than that levied by any other American state on the coal industry."4 Statement to Accompany the Report of the Free Joint Conference Committees on Coal Taxation 1 (1975). The Committees pointed out, however, that the Province of Alberta, Canada, recently had raised sharply its royalty on natural gas, thereby forcing consumers of Alberta gas in Montana and elsewhere to finance involuntarily Alberta's "universities, hospitals, reduction of other taxes, etc." Ibid. Stating that "we should . . . look north to Alberta," the Conference Committees observed: "While coal is not as scarce as natural gas, most of the Montana coal now produced is committed for sale under long-term contracts and will be purchased with this tax added to its price." Ibid. The Committees noted that although some new coal contracts might shift to Wyoming to take advantage of that State's lower severance tax, Montana's severance tax was comparable to that recently enacted by North Dakota.5 Thus, the Committees had no doubt that the coal industry would grow even with this tax, since "the combined coal reserves of Montana and North Dakota are simply too great a part of the nation's fossil fuel resources to be ignored because of taxes at these levels."6 Ibid. 60 As the Montana Legislature foresaw, the imposition of this severance tax has generated enormous revenues for the State. Montana collected $33.6 million in severance taxes in fiscal year 1978, H.R.Rep.No.96-1527, pt. 1, p. 3 (1980), and appellants alleged that it would collect not less than $40 million in fiscal year 1979. App. to Juris. Statement 55a. It has been suggested that by the year 2010, Montana will have collected more than $20 billion through the implementation of this tax. Hearings 22 (statement of Rep. Vento). 61 No less remarkable is the increasing percentage of total revenue represented by the severance tax. In 1972, the then-current flat rate severance tax on coal provided only 0.4% of Montana's total tax revenue; in contrast, in the year following the 1975 amendment, the coal severance tax supplied 11.4% of the State's total tax revenue. See Griffin & Shelton, Coal Severance Tax Policies in the Rocky Mountain States, 7 Policy Studies J. 29, 33 (1978) (Griffin). Appellants assert that the tax now supplies almost 20% of the State's total revenue. Tr. of Oral Arg. 31. Indeed, the funds generated by the tax have been so large that, beginning in 1980, at least 50% of the severance tax is to be transferred and dedicated to a permanent trust fund, the principal of which must "forever remain inviolate" unless appropriated by a vote of three-fourths of the members of each house of the legislature. Mont.Const., Art. IX, § 5. Moreover, in 1979, Montana passed legislation providing property and income tax relief for state residents. 1979 Mont.Laws, ch. 698. 62 Appellants' complaint alleged that Montana's severance tax is ultimately borne by out-of-state consumers, and for the purposes of this appeal that allegation is to be treated as true.7 Appellants further alleged that the tax bears no reasonable relationship to the services or protection provided by the State. The issue here, of course, is whether they are entitled to a trial on that claim, not whether they will succeed on the merits. It should be noted, however, that Montana imposes numerous other taxes upon coal mining.8 In addition, because 70% to 75% of the coal-bearing land in Montana is owned by the Federal Government, Montana derives a large amount of coal mining revenue from the United States as well.9 In light of these circumstances, the Interstate and Foreign Commerce Committee of the United States House of Representatives concluded that Montana's coal severance tax results in revenues "far in excess of the direct and indirect impact costs attributable to the coal production." H.R.Rep.No.96-1527, pt. 1, p. 2 (1980). Several commentators have agreed that Montana and other similarly situated Western States have pursued a policy of "OPEC-like revenue maximization," and that the Montana tax accordingly bears no reasonable relationship to the services and protection afforded by the State. R. Nehring & B. Zycher with J. Wharton, Coal Development and Government Regulation in the Northern Great Plains: A Preliminary Report 148 (1976); Church, at 272. See Krutilla, at 185. These findings, of course, are not dispositive of the issue whether the Montana severance tax is "fairly related" to the services provided by the State within the meaning of our prior cases. They do suggest, however, that appellants' claim is a substantial one. The failure of the Court to acknowledge this stems, it seems to me, from a misreading of our prior cases. It is to those cases that I now turn. II 63 This Court's Commerce Clause cases have been marked by tension between two competing concepts: the view that interstate commerce should enjoy a "free trade" immunity from state taxation, see, e. g., Freeman v. Hewit, 329 U.S. 249, 252, 67 S.Ct. 274, 276, 91 L.Ed. 265 (1946), and the view that interstate commerce may be required to " 'pay its way,' " see, e. g., Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 254, 58 S.Ct. 546, 548, 82 L.Ed. 823 (1938). See generally Complete Auto Transit, Inc. v. Brady, 430 U.S., at 278-281, 288-289, n.15, 97 S.Ct., at 1078-80, 1083-84, n.15; Simet & Lynn, Interstate Commerce Must Pay Its Way: The Demise of Spector, 31 Nat.Tax J. 53 (1978); Hellerstein, Foreword, State Taxation Under the Commerce Clause: An Historical Perspective, 29 Vand.L.Rev. 335, 335-339 (1976). In Complete Auto Transit, the Court resolved that tension by unanimously reaffirming that interstate commerce is not immune from state taxation. 430 U.S., at 288, 97 S.Ct., at 1083. But at the same time the Court made clear that not all state taxation of interstate commerce is valid; a state tax will be sustained against Commerce Clause challenge only if "the tax is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State." Id., at 279, 97 S.Ct., at 1079. See Maryland v. Louisiana, 451 U.S. 725, 754, 101 S.Ct. 2114, 2133, 68 L.Ed.2d 576 (1981). 64 The Court today acknowledges and, indeed, holds that a Commerce Clause challenge to a state severance tax must be evaluated under Complete Auto Transit's four-part test. Ante, at 617. I fully agree. I cannot agree, however, with the Court's application of that test to the facts of the present case. Appellants concede, and the Court properly concludes, that the first two prongs of the test—substantial nexus and fair apportionment—are satisfied here. The Court also correctly observes that Montana's severance tax is facially neutral. It does not automatically follow, however, that the Montana severance tax does not unduly burden or interfere with interstate commerce. The gravamen of appellants' complaint is that the severance tax does not satisfy the fourth prong of the Complete Auto Transit test because it is tailored to, and does, force interstate commerce to pay more than its way. Under our established precedents, appellants are entitled to a trial on this claim. 65 The Court's conclusion to the contrary rests on the premise that the relevant inquiry under the fourth prong of the Complete Auto Transit test is simply whether the measure of the tax is fixed as a percentage of the value of the coal taken. Ante, at 626. This interpretation emasculates the fourth prong. No trial will ever be necessary on the issue of fair relationship so long as a State is careful to impose a proportional rather than a flat tax rate; thus, the Court's rule is no less "mechanical" than the approach entertained inHeisler v. Thomas Colliery Co., 260 U.S. 245, 43 S.Ct. 83, 67 L.Ed. 237 (1922), disapproved today, ante, at 617.10 Under the Court's reasoning any ad valorem tax will satisfy the fourth prong; indeed, the Court implicitly ratifies Montana's contention that it is free to tax this coal at 100% or even 1,000% of value should it choose to do so. Tr. of Oral Arg. 21. Likewise, the Court's analysis indicates that Montana's severance tax would not run afoul of the Commerce Clause even if it raised sufficient revenue to allow Montana to eliminate all other taxes upon its citizens.11 66 The Court's prior cases neither require nor support such a startling result.12 The Court often has noted that " '[i]t was not the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of state tax burden even though it increases the cost of doing the business.' " Complete Auto Transit, 430 U.S., at 279, 97 S.Ct., at 1079 (emphasis added), quoting Western Live Stock, 303 U.S., at 254, 58 S.Ct., at 548. See Maryland v. Louisiana, 451 U.S., at 754, 101 S.Ct., at 2133. Accordingly, interstate commerce cannot claim any exemption from a state tax that "is fairly related to the services provided by the State." Complete Auto Transit, 430 U.S., at 279, 97 S.Ct., at 1079. We have not interpreted this requirement of "fair relation" in a narrow sense; interstate commerce may be required to share equally with intrastate commerce the cost of providing "police and fire protection, the benefit of a trained work force, and 'the advantages of a civilized society.' " Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U.S. 207, 228, 100 S.Ct. 2109, 2123, 65 L.Ed.2d 66 (1980), quoting Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 445, 99 S.Ct. 1813, 1819-20, 60 L.Ed.2d 336 (1979). See, e. g., Nippert v. Richmond, 327 U.S. 416, 433, 66 S.Ct. 586, 594, 90 L.Ed. 760 (1946). Moreover, interstate commerce can be required to "pay its own way" in a narrower sense as well: the State may tax interstate commerce for the purpose of recovering those costs attributable to the activity itself. See, e. g., Postal Telegraph-Cable Co. v. Richmond, 249 U.S. 252, 39 S.Ct. 265, 63 L.Ed. 590 (1919).13 67 The Court has never suggested, however, that interstate commerce may be required to pay more than its own way. The Court today fails to recognize that the Commerce Clause does impose limits upon the State's power to impose even facially neutral and properly apportioned taxes. See ante, at 622-623. In Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 163, 74 S.Ct. 396, 399, 98 L.Ed. 583 (1954), Texas argued that no inquiry into the constitutionality of a facially neutral tax on the "taking" of gas was necessary because the State "has afforded great benefits and protection to pipeline companies." The Calvert Court rejected this argument, holding that "these benefits are relevant here only to show that the essential requirements of due process have been met sufficiently to justify the imposition of any tax on the interstate activity." Id., at 163-164, 74 S.Ct., at 399. The Court held, id., at 164, that when a tax is challenged on Commerce Clause grounds its validity " 'depends upon other considerations of constitutional policy having reference to the substantial effects, actual or potential, of the particular tax in suppressing or burdening unduly the commerce,' " quoting Nippert v. Richmond, 327 U.S., at 424, 66 S.Ct., at 590. Accordingly, while the Commerce Clause does not require that interstate commerce be placed in a privileged position, it does require that it not be unduly burdened. In framing its taxing measures to reach interstate commerce, the State must be "at pains to do so in a manner which avoids the evils forbidden by the commerce clause and puts that commerce actually on a plane of equality with local trade in local taxation." Nippert, 327 U.S., at 434, 66 S.Ct., at 590 (emphasis added). 68 Thus, the Court has been particularly vigilant to review taxes that "single out interstate business," since "[a]ny tailored tax of this sort creates an increased danger of error in apportionment, of discrimination against interstate commerce, and of a lack of relationship to the services provided by the State." Complete Auto Transit, 430 U.S., at 288-289, n. 15, 97 S.Ct., at 1084, n. 15.14 Moreover, the Court's vigilance has not been limited to taxes that discriminate upon their face: "Not the tax in a vacuum of words, but its practical consequences for the doing of interstate commerce in applications to concrete facts are our concern." Nippert, 327 U.S., at 431, 66 S.Ct., at 593. See Maryland v. Louisiana, 451 U.S., at 756, 101 S.Ct., at 2134. This is particularly true when the challenged tax, while facially neutral, falls so heavily upon interstate commerce that its burden "is not likely to be alleviated by those political restraints which are normally exerted on legislation where it affects adversely interests within the state." McGoldrick v. Berwind-White Co., 309 U.S. 33, 46, n. 2, 60 S.Ct. 388, 392, n. 2, 84 L.Ed. 565 (1940). Cf. Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 446-447, 98 S.Ct. 787, 797, 54 L.Ed.2d 664 (1978). In sum, then, when a tax has been "tailored" to reach interstate commerce, the Court's cases suggest that we require a closer "fit" under the fourth prong of the Complete Auto Transit test than when interstate commerce has not been singled out by the challenged tax. 69 As a number of commentators have noted, state severance taxes upon minerals are particularly susceptible to "tailoring." "Like a tollgate lying athwart a trade route, a severance or processing tax conditions access to natural resources." Developments in the Law: Federal Limitations on State Taxation of Interstate Business, 75 Harv.L.Rev. 953, 970 (1962). Thus, to the extent that the taxing jurisdiction approaches a monopoly position in the mineral, and consumption is largely outside the State, such taxes are "[e]conomically and politically analogous to transportation taxes exploiting geographical position." Brown, The Open Economy: Justice Frankfurter and the Position of the Judiciary, 67 Yale L.J. 219, 232 (1957) (Brown). See also Hellerstein, Constitutional Constraints on State and Local Taxation of Energy Resources, 31 Nat.Tax J. 245, 249-250 (1978); R. Posner, Economic Analysis of Law 510-514 (2d ed. 1977) (Posner). But just as a port State may require that imports pay their own way even though the tax levied increases the cost of goods purchased by inland customers, see Michelin Tire Corp. v. Wages, 423 U.S. 276, 288, 96 S.Ct. 535, 542, 46 L.Ed.2d 495 (1976),15 so also may a mineral-rich State require that those who consume its sources pay a fair share of the general costs of government, as well as the specific costs attributable to the commerce itself. Thus, the mere fact that the burden of a severance tax is largely shifted forward to out-of-state consumers does not, standing alone, make out a Commerce Clause violation. See Hellerstein, supra, at 249. But the Clause is violated when, as appellants allege is the case here, the State effectively selects "a class of out-of-state taxpayers to shoulder a tax burden grossly in excess of any costs imposed directly or indirectly by such taxpayers on the State." Ibid. III 70 It is true that a trial in this case would require "complex factual inquiries" into whether economic conditions are such that Montana is in fact able to export the burden of its severance tax, ante, at 619, n. 8.16 I do not believe, however, that this threshold inquiry is beyond judicial competence.17 If the trial court were to determine that the tax is exported, it would then have to determine whether the tax is "fairly related," within the meaning of Complete Auto Transit. The Court to the contrary, this would not require the trial court "to second-guess legislative decisions about the amount or disposition of tax revenues." Ante, at 627, n. 16. If the tax is in fact a legitimate general revenue measure identical or roughly comparable to taxes imposed upon similar industries, a court's inquiry is at an end; on the other hand, if the tax singles out this particular interstate activity and charges it with a grossly disproportionate share of the general costs of government,18 the court must determine whether there is some reasonable basis for the legislative judgment that the tax is necessary to compensate the State for the particular costs imposed by the activity. 71 To be sure, the task is likely to prove to be a formidable one; but its difficulty does not excuse our failure to undertake it. This case poses extremely grave issues that threaten both to "polarize the Nation," see H.R.Rep.No.96-1527, pt. 1, p. 2 (1980), and to reawaken "the tendencies toward economic Balkanization" that the Commerce Clause was designed to remedy. See Hughes v. Oklahoma, 441 U.S. 322, 325-326, 99 S.Ct. 1727, 1731, 60 L.Ed.2d 250 (1979). It is no answer to say that the matter is better left to Congress:19 72 "While the Constitution vests in Congress the power to regulate commerce among the states, it does not say what the states may or may not do in the absence of congressional action . . . . Perhaps even more than by interpretation of its written word, this Court has advanced the solidarity and prosperity of this Nation by the meaning it has given to these great silences of the Constitution." H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 534-535, 69 S.Ct. 657, 663, 93 L.Ed. 865 (1949). 73 I would not lightly abandon that role.20 Because I believe that appellants are entitled to an opportunity to prove that, in Holmes' words, Montana's severance tax "embodies what the Commerce Clause was meant to end," I dissent.21 1 Under Mont.Code Ann. § 15-35-103 (1979), the value of the coal is determined by the "contract sales price" which is defined as "the price of coal extracted and prepared for shipment f. o. b. mine, excluding the amount charged by the seller to pay taxes paid on production . . . ." § 15-35-102(1). Taxes paid on production are defined in § 15-35-102(6). Because production taxes are excluded from the computation of the value of the coal, the effective rate of the tax is lower than the statutory rate. 2 "Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . ." U.S.Const., Art. I, § 8, cl. 3. 3 The "Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land . . . ." U.S.Const., Art. VI, cl. 2. 4 The Heisler Court explained that any other approach would "nationalize all industries, it would nationalize and withdraw from state jurisdiction and deliver to federal commercial control the fruits of California and the South, the wheat of the West and its meats, the cotton of the South, the shoes of Massachusetts and the woolen industries of other States, at the very inception of their production or growth, that is, the fruits unpicked, the cotton and wheat ungathered, hides and flesh of cattle yet 'on the hoof,' wool yet unshorn, and coal yet unmined, because they are in varying percentages destined for and surely to be exported to States other than those of their production." 260 U.S., at 259-260, 43 S.Ct., at 86. Of course, the "fruits of California" and the "wheat of the West" have long since been held to be within the reach of the Commerce Clause, Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970); Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). 5 The Heisler approach has been criticized as unresponsive to economic reality. See Hellerstein, Constitutional Constraints on State and Local Taxation of Energy Resources, 31 Nat.Tax.J. 245, 249 (1978); Brown, The Open Economy: Justice Frankfurter and the Position of the Judiciary, 67 Yale L.J. 219, 232-233 (1957); Developments in the Law: Federal Limitations on State Taxation of Interstate Business, 75 Harv.L.Rev. 953, 970-971 (1962) (Developments). 6 The Heisler approach has forced the Court to draw distinctions that can only be described as opaque. Compare, for example, East Ohio Gas Co. v. Tax Comm'n, 283 U.S. 465, 51 S.Ct. 499, 75 L.Ed. 1171 (1931) (movement of gas into local supply lines at reduced pressure constitutes local business), with State Tax Comm'n v. Interstate Natural Gas Co., 284 U.S. 41, 52 S.Ct. 62, 76 L.Ed. 156 (1931) (movement of gas into local supply lines constitutes part of interstate business). 7 This is not to suggest, however, that Heisler and its progeny were wrongly decided. 8 Nor do we share appellants' apparent view that the Commerce Clause injects principles of antitrust law into the relations between the States by reference to such imprecise standards as whether one State is "exploiting" its "monopoly" position with respect to a natural resource when the flow of commerce among them is not otherwise impeded. The threshold questions whether a State enjoys a "monopoly" position and whether the tax burden is shifted out of State, rather than borne by in-state producers and consumers, would require complex factual inquiries about such issues as elasticity of demand for other alternative sources of supply. Moreover, under this approach, the constitutionality of a state tax could well turn on whether the in-state producer is able, through sales contracts or otherwise, to shift the burden of the tax forward to its out-of-state customers. As the Supreme Court of Montana observed, "[i]t would be strange indeed if the legality of a tax could be made to depend on the vagaries of the terms of contracts." Mont., 615 P.2d 847, 856 (1980). It has been suggested that the "formidable evidentiary difficulties in appraising the geographical distribution of industry, with a view toward determining a state's monopolistic position, might make the Court's inquiry futile." Developments, supra n. 5, at 970. See Hellerstein, supra n. 5, at 248-249. 9 Since this Court has held that interstate commerce must bear its fair share of the state tax burden, see Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 254, 58 S.Ct. 546, 548, 82 L.Ed. 823 (1938), appellants cannot argue that no severance tax may be imposed on coal primarily destined for interstate commerce. 10 Appellants expect to show that the "legitimate local impact costs [of coal mining]—for schools, roads, police, fire and health protection, and environmental protection and the like—might amount to approximately 2 [cents] per ton, compared to present average revenues from the severance tax alone of over $2.00 per ton." Brief for Appellants 12. Appellants contend that inasmuch as 50% of the revenues generated by the Montana tax is "cached away, in effect, for unrelated and unknown purposes," it is clear that the tax is not fairly related to the services furnished by the State. Reply Brief for Appellants 8. At oral argument before the Montana Supreme Court, appellants' counsel suggested that a tax of "perhaps twelve and a half to fifteen percent of the value of the coal" would be constitutional. Mont., 615 P.2d, at 851. 11 Contrary to appellants' suggestion, the fact that 50% of the proceeds of the severance tax is paid into a trust fund does not undermine the Montana court's conclusion that the tax is a general revenue tax. Nothing in the Constitution prohibits the people of Montana from choosing to allocate a portion of current tax revenues for use by future generations. 12 As the Court has stated, "such imposition, although termed a tax, cannot be tested by standards which generally determine the validity of taxes." Interstate Transit, Inc. v. Lindsey, 283 U.S. 183, 190, 51 S.Ct. 380, 382, 75 L.Ed. 953 (1931). Because such charges are purportedly assessed to reimburse the State for costs incurred in providing specific quantifiable services, we have required a showing, based on factual evidence in the record, that "the fees charged do not appear to be manifestly disproportionate to the services rendered . . . ." Clark v. Paul Gray, Inc., 306 U.S., at 599, 59 S.Ct., at 753. See id., at 598-600, 59 S.Ct., at 752-753; Ingels v. Morf, 300 U.S., at 296-297, 57 S.Ct., at 442-443. One commentator has suggested that these "user" charges "are not true revenue measures and . . . the considerations applicable to ordinary tax measures do not apply." P. Hartman, State Taxation of Interstate Commerce 20, n. 72 (1953). Instead, "user" fees "partak[e] . . . of the nature of a rent charged by the State, based upon its proprietary interest in its public property, [rather] than of a tax, as that term is thought of in a technical sense." Id., at 122. See generally id., at 122-130. 13 Most of the States raise revenue by levying a severance tax on mineral production. The first such tax was imposed by Michigan in 1846. See U.S. Dept. of Agric., State Taxation of Mineral Deposits and Production (1977). By 1979, 33 States had adopted some type of severance tax. See U.S. Bureau of Census, State Government Tax Collections in 1979, Table 3, p. 6 (1980). 14 The fourth prong of the Complete Auto Transit test is derived from General Motors, J. C. Penney, and similar cases. See 430 U.S., at 279, n. 8, 97 S.Ct., at 1079, n. 8; see also National Geographic Society v. California Board of Equalization, 430 U.S. 551, 558, 97 S.Ct. 1386, 1391, 51 L.Ed.2d 631 (1977). 15 Indeed, the words "amount" and "value" were not even used in Complete Auto Transit. See 430 U.S., at 279, 97 S.Ct., at 1079. Similarly, our cases applying the Complete Auto Transit test have not mentioned either of these words. See Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U.S. 207, 228, 100 S.Ct. 2109, 2123, 65 L.Ed.2d 66 (1980); Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S. 425, 443, 100 S.Ct. 1223, 1234, 63 L.Ed.2d 510 (1980); Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 444-445, 99 S.Ct. 1813, 1819-20, 60 L.Ed.2d 336 (1979); Washington Revenue Dept. v. Association of Wash. Stevedoring Cos., 435 U.S. 734, 750, 98 S.Ct. 1388, 1399, 57 L.Ed.2d 197 (1978); National Geographic Society v. California Board of Equalization, supra, 430 U.S., at 558, 97 S.Ct., at 1391. 16 In any event, the linchpin of appellants' contention is the incorrect assumption that the amount of state taxes that may be levied on an activity connected to interstate commerce is limited by the costs incurred by the State on account of that activity. Only then does it make sense to advocate judicial examination of the relationship between taxes paid and benefits provided. But as we have previously noted, see supra, at 623-624, interstate commerce may be required to contribute to the cost of providing all governmental services, including those services from which it arguably receives no direct "benefit." In such circumstances, absent an equal protection challenge (which appellants do not raise), and unless a court is to second-guess legislative decisions about the amount or disposition of tax revenues, it is difficult to see how the court is to go about comparing costs and benefits in order to decide whether the tax burden on an activity connected to interstate commerce is excessive. 17 Of course, a taxing statute may be judicially disapproved if it is "so arbitrary as to compel the conclusion that it does not involve an exertion of the taxing power, but constitutes, in substance and effect, the direct exertion of a different and forbidden power, as, for example, the confiscation of property." Magnano Co. v. Hamilton, 292 U.S. 40, 44, 54 S.Ct. 599, 601, 78 L.Ed. 1109 (1934). 18 The controversy over the Montana tax has not escaped the attention of the Congress. Several bills were introduced during the 96th Congress to limit the rate of state severance taxes. See S. 2695, H.R. 6625, H.R. 6654 and H.R. 7163. Similar bills have been introduced in the 97th Congress. See S. 178, H.R. 1313. 19 As originally enacted in 1920, § 35 of the Mineral Lands Leasing Act, ch. 85, 41 Stat. 450, 30 U.S.C. § 191 (1970 ed.), provided that all receipts from the leasing of public lands under the Act were to be paid into the United States Treasury and then divided as follows: 37.5% to the State in which the leased lands are located; 52.5% to the reclamation fund created by the Reclamation Act of 1902, ch. 1093, § 1, 32 Stat. 388, 43 U.S.C. § 391; and the remaining 10% to be deposited in the Treasury under "miscellaneous receipts." Section 35 was amended by § 9(a) of the 1975 Amendments to provide for a new statutory formula which is currently in effect. Under this formula, the State in which the mining occurs receives 50% of the revenues, the reclamation fund receives 40%, and the United States Treasury the remaining 10%. 30 U.S.C. § 191. 20 Indeed, appellants alleged in their complaints that the contracts between appellant coal producers and appellant utility companies require the utility companies to reimburse the coal producers for their severance tax payments, and that the ultimate incidence of the tax primarily falls on the utilities' out-of-state customers. Complaint &Par; 17, 18, App. to Juris. Statement (J.S.App.) 53a-54a. Presumably, with regard to these contracts, the Federal Government's receipts will be unaffected by the Montana tax. 21 Thus, in Exxon, after rejecting the "national policy" pre-emption argument, the Court went on to consider more focused allegations concerning alleged conflicts between the state law and specific provisions of the Robinson-Patman Act. 437 U.S., at 129-133, 98 S.Ct., at 2215-2217. 22 Appellants' assertion that the Montana tax is pre-empted by the Clean Air Act, 42 U.S.C. § 7401 et seq. (1976 ed., Supp. III), merits little discussion. The Clean Air Act does not mandate the use of coal; it merely prescribes standards governing the emission of sulfur dioxide when coal is used. Any effect those standards might have on the use of high or low sulphur coal is incidental. 1 Montana and Wyoming together contain 40% of all United States coal reserves and 68% of all reserves of low-sulfur coal. H.R.Rep.No.96-1527, pt. 1, p. 3 (1980). 2 Together with Wyoming, Montana supplied 10% of the United States' demand for coal in 1977; it is estimated that Montana and Wyoming will supply 33% of the Nation's coal by 1990. Hearings 22 (statement of Rep. Vento). 3 The pre-1975 rate was 12, 22, 34, or 40 cents per ton depending on the Btu content of the coal mined. Krutilla, at 50. Appellants state that coal taxed at 34 cents per ton prior to the 1975 amendment is now typically taxed at the effective rate of $2.08 per ton. Brief for Appellants 7-8. 4 In fact, the study of coal production taxes commissioned by the Montana Legislature in 1974, see ante, at 612-613, found that while other States may have imposed a higher overall tax burden on coal, "no coal state had, through 1973, higher severance and property taxes than Montana." Subcommittee on Fossil Fuel Taxation, Interim Study on Fossil Fuel Taxation 14 (1974). Thus, even prior to the 1975 amendment, "Montana and its local governments tax[ed] the production of fossil fuels at a higher level than any competitive state . . . ." (Emphasis in original.) Ibid. 5 North Dakota taxes lignite at a flat rate that is estimated to equal about 20% of value. See H.R.Rep.No.96-1527, pt. 1, p. 3 (1980). Apparently inspired by these examples, Wyoming increased its state severance and local ad valorem taxes to a combined total of approximately 171/2% of value. Wyo.Stat.Ann. §§ 39-2-202, 39-2-402, 39-6-302(a)-(f), and 39-6-303(a) (1977 and Supp.1980). See H.R.Rep.No.96-1527, pt. 1, p. 3 (1980). With the possible exception of North Dakota's tax on lignite, the severance taxes imposed by Montana and Wyoming are higher than the taxes imposed on energy reserves by any other State. Ibid. Significantly, however, other Western States have considered or are considering raising their taxes on coal production. Ibid. One study concluded that " '[t]ax leadership' in the western states appears to be an emerging reality," and that informal cartel arrangements may arise among these States. Church, Conflicting Federal State and Local Interest Trends in State and Local Energy Taxation: Coal and Copper—A Case in Point, 31 Nat.Tax J. 269, 278 (1978) (Church). Indeed, the 1974 Montana Subcommittee on Fossil Fuel Taxation, see n.4, supra, was directed by the Montana Legislature "to investigate the feasibility and value of multi-state taxation of coal with the Dakotas and Wyoming, and to contract and cooperate joining with these other states to achieve that end . . . ." House Resolution No. 45, 1974 Mont.Laws, p. 1620. The Subcommittee recommended that the Executive pursue this goal. Subcommittee on Fossil Fuel Taxation, supra at 2. 6 One of the principal sponsors of the severance tax bill explained to the Montana Legislature: "Most of Montana's coal is shipped out of state to power plants and utility companies in the Midwest. In reviewing the [long-term] contracts between the coal companies and the utility companies who purchase the coal, all of the contracts that were shown to our Legislative Committee contain an escalation clause for taxes. In other words, the local companies simply add the additional taxes to their bill, and the entire cost is passed on to the purchasers in the Midwest or elsewhere. Because most of the purchasers are regulated utility companies, it is reasonable to assume these companies will, in turn, pass on their extra costs to their customers." Towe, Explanation of Reasons for Montana's Coal Tax 4, cited in Brief for Appellants 34. 7 The Montana Supreme Court observed that under Montana law, facts well pleaded in the complaint must be accepted as true on review of a judgment of dismissal; it therefore necessarily held that appellants could not prevail "under any view of the alleged facts." Mont., 615 P.2d 847, 849 (1980). See also Tr. of Oral Arg. 17-18. 8 In addition to the severance tax on coal, Montana imposes a gross proceeds tax, Mont.Code Ann. § 15-6-132 (1979), a resource indemnity trust tax, § 15-38-104, a property tax on mining equipment, § 15-6-138(b), and a corporation license tax, § 15-31-101. See Krutilla, at 50-54. Furthermore, all costs of reclamation must be borne by the coal companies under both federal and state law, and Montana requires each company to purchase a reclamation bond prior to the commencement of mining operations. § 82-4-338. 9 By federal statute, 50% of the "sales, bonuses, royalties, and rentals" of federal public lands are payable to the State within which the leased land lies "to be used by such State and its subdivisions, as the legislature of the State may direct giving priority to those subdivisions of the State socially or economically impacted by development of minerals leased under this chapter, for (i) planning, (ii) construction and maintenance of public facilities, and (iii) provision of public service . . . ." Mineral Lands Leasing Act of 1920, § 35, 41 Stat. 450, as amended, 30 U.S.C. § 191. An additional 40% of this federal revenue from mineral leases is indirectly returned to the States through a reclamation fund. Ibid. Moreover, § 601 of the Powerplant and Industrial Fuel Use Act of 1978, Pub.L. 95-620, 92 Stat. 3323, 42 U.S.C. § 8401 (1976 ed., Supp. III), authorizes federal grants to areas affected by increased coal production. 10 This is a marked departure from the Court's prior cases. Rather than suggesting such a mechanical test, those cases imply that a tax will be struck down under the fourth prong of the Complete Auto Transit test if the plaintiff establishes a factual record that the tax is not fairly related to the services and protection provided by the State. See, e. g., Washington Revenue Dept. v. Association of Wash. Stevedoring Cos., 435 U.S. 734, 750-751, 98 S.Ct. 1388, 1399, 57 L.Ed.2d 197 (1978); id., at 764, 98 S.Ct., at 1406 (POWELL, J., concurring in part and concurring in result). See Merrion v. Jicarilla Apache Tribe, 617 F.2d 537, 545, n.4 (CA10) (en banc), cert. granted, 449 U.S. 820, 101 S.Ct. 71, 66 L.Ed.2d 21 (1980). Even the trial court in the present case recognized that if it reached this question it "would necessarily have to deny the motion to dismiss and proceed to a factual determination." App. 37a. 11 As the example of Alaska illustrates, this prospect is not a fanciful one. Ninety percent of Alaska's revenue derives from petroleum taxes and royalties; because of the massive sums that have been so raised, that State's income tax has been eliminated. See N.Y. Times, June 5, 1981, section 1, p. A10, col. 1. As noted above, Montana's severance tax already allegedly accounts for 20% of its total tax revenue, and the State has enacted property and income tax relief. 12 The Court apparently derives its interpretation of the fourth prong of the Complete Auto Transit test primarily from Wisconsin v. J. C. Penney Co., 311 U.S. 435, 61 S.Ct. 246, 85 L.Ed. 267 (1940), and General Motors Corp. v. Washington, 377 U.S. 436, 84 S.Ct. 1564, 12 L.Ed.2d 430 (1964). Ante, at 624-626. In neither of those cases, however, did the Court consider the question presented here. J. C. Penney involved a Fourteenth Amendment challenge brought by a foreign corporation to a Wisconsin tax imposed on domestic and foreign corporations "for the privilege of declaring . . . dividends" out of income from property located and business transacted in Wisconsin. The corporation argued that because the income from the Wisconsin transactions had been transferred to New York, Wisconsin had "no jurisdiction to tax" those amounts. 311 U.S., at 436, 61 S.Ct., at 247. The Court rejected that argument, holding that "[t]he fact that a tax is contingent upon events brought to pass without a state does not destroy the nexus between such a tax and transactions within a state for which the tax is an exaction." Id., at 445, 61 S.Ct., at 250. In General Motors, the question before the court was the validity of an unapportioned tax on the gross receipts of a corporation in interstate commerce. The Court concluded that there was a sufficient nexus to uphold the tax. 377 U.S., at 448, 84 S.Ct., at 1571. See id., at 449-450, 84 S.Ct., at 1572-73. (BRENNAN, J., dissenting). 13 In Postal Telegraph-Cable Co., a telegraph company engaged in interstate commerce challenged both an annual license tax and an annual tax of $2 for each telegraph pole that the company maintained in the city of Richmond, Va. The Court sustained the validity of the license tax on the ground that it was simply a nondiscriminatory "exercise of the police power . . . for revenue purposes." 249 U.S., at 249 U.S., at 257, 39 S.Ct., at 266. In contrast, the pole tax was subjected to stricter scrutiny; the Court stated that while interstate commerce must pay its way, the authority remains in the courts, "on proper application, to determine whether, under the conditions prevailing in a given case, the charge made is reasonably proportionate to the service to be rendered and the liabilities involved, or whether it is a disguised attempt to impose a burden on interstate commerce." Id., at 260, 39 S.Ct., at 267. The Court has continued to scrutinize carefully taxes on interstate commerce that are designed to reimburse the State for the particular costs imposed by that commerce. See, e. g., Evansville-Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc., 405 U.S. 707, 92 S.Ct. 1349, 31 L.Ed.2d 620 (1972); Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1939); Ingels v. Morf, 300 U.S. 290, 57 S.Ct. 439, 81 L.Ed. 653 (1937). In analyzing such taxes, it has required that there be factual evidence in the record that "the fees charged do not appear to be manifestly disproportionate to the services rendered." Clark, 306 U.S., at 599, 59 S.Ct., at 753. The Court concludes that this test has no bearing here because the Montana Supreme Court held that the coal severance tax was " 'imposed for the general support of the government.' " Ante, at 621. In fact, however, the matter is not nearly so clear as the Court suggests. The Montana court also implied that the tax was designed at least in part to compensate the State for the special costs attributable to coal mining, Mont., 615 P.2d, at 850, 855, as have appellees here. Brief for Appellees, 1-3, 26-27. Indeed, the stated objectives of the 1975 amendment were to: "(a) preserve or modestly increase revenues going to the general fund, (b) to respond to current social impacts attributable to coal development, and (c) to invest in the future, when new energy technologies reduce our dependence on coal and mining activity may decline." Statement to Accompany the Report of the Free Joint Conference Committees on Coal Taxation 1 (1975). Since the tax was designed only to "preserve or modestly increase" general revenues, it is appropriate for a court to inquire here whether the "surplus" revenue Montana has received from this severance tax is "manifestly disproportionate" to the present or future costs attributable to coal development. 14 Complete Auto Transit gave several examples of "tailored" taxes: property taxes designed to differentiate between property used in transportation and other types of property; an income tax using different rates for different types of business; and a tax on the "privilege of doing business in corporate form" that changed with the nature of the corporate activity involved. 430 U.S., at 288, n. 15, 97 S.Ct., at 1084, n. 15. A severance tax using different rates for different minerals is, of course, directly analogous to these examples. 15 See also Washington Revenue Dept. v. Association of Washington Stevedoring Cos., 435 U.S. 734, 754-755, 98 S.Ct. 1388, 1401-02, 57 L.Ed.2d 197 (1978); id., at 764, 98 S.Ct., at 1406 (POWELL, J., concurring in part and concurring in result). 16 The degree to which a tax may be "exported" turns on such factors as the taxing jurisdiction's relative dominance of the market, the elasticity of demand for the product, and the availability of adequate substitutes. See, e. g., McLure, Economic Constraints on State and Local Taxation of Energy Resources, 31 Nat.Tax J. 257, 257-259 (1978); Posner, at 510-512. Commentators are in disagreement over the likelihood that coal severance taxes are in fact exported. Compare, e. g., McLure, at 259, and Gillis & Peprah, Severance Taxes on Coal and Uranium in the Sunbelt, Tex.Bus.Rev. 302, 308 (1980), with Church, at 277, and Griffin, at 33. It is clear, however, that that likelihood increases to the extent that the taxing States form a cartel arrangement. Gillis, at 308. See n. 5, supra. Whether the tax is in fact exported here is, of course, an issue for trial. 17 There is no basis for the conclusion that the issues presented would be more difficult than those routinely dealt with in complex civil litigation. See, e. g., Milwaukee v. Illinois, 451 U.S. 304, 349, 101 S.Ct. 1784, 1808, 68 L.Ed.2d 114 (1981) (dissenting opinion). "The complexity of a properly presented federal question is hardly a suitable basis for denying federal courts the power to adjudicate." Id., at 349, n. 25, 101 S.Ct., at 1809, n. 25. 18 See n. 13, supra. Cf. Maryland v. Louisiana, 451 U.S. 725, 755, n. 27, 101 S.Ct. 2114, 2133, n. 27, 68 L.Ed.2d 576 (1981) (reciting argument of United States that use of 75% of proceeds of Louisiana's "First-Use Tax" to service general debt, and only 25% to alleviate alleged environmental damage from pipeline activities, suggests that tax was not fairly apportioned to value of activities occurring within the State). 19 As the Court notes, the issue has not escaped congressional attention. Ante, at 628, n. 18. No bill, however, has yet been passed, and this Court is not disabled to act in the interim; to the contrary, strong policy and institutional considerations suggest that it is appropriate that the Court consider this issue. See Brown, at 222. Indeed, whereas Montana argues that the question presented here is one better left to Congress, in 1980 hearings before the Senate Committee on Energy and Natural Resources, the then Governor of Montana took the position that the reasonableness of this tax was "a question most properly left to the court," not a congressional committee. See Hearing on S. 2695 before the Senate Committee on Energy and Natural Resources, 96th Cong., 2d Sess., 237 (1980). 20 Justice Holmes' words are relevant: "I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States. For one in my place sees how often a local policy prevails with those who are not trained to national views and how often action is taken that embodies what the Commerce Clause was meant to end." O. Holmes, Law and the Court, in Collected Legal Papers 291, 295-296 (reprint, 1952). 21 I agree with the Court that appellants' Supremacy Clause claims are without merit.

78

453 U.S. 571 101 S.Ct. 2925 69 L.Ed.2d 856 ARKANSAS LOUISIANA GAS COMPANY, Petitioner,v.Frank J. HALL et al. No. 78-1789. Argued April 20, 1981. Decided July 2, 1981. Syllabus In 1952, respondent natural gas producers and petitioner entered into a contract under which respondents agreed to sell petitioner natural gas from a certain gas field in Louisiana. The contract contained a fixed price schedule and a "favored nations clause," which provided that if petitioner purchased gas from the gas field from another party at a higher rate than it was paying respondents, then respondents would be entitled to a higher price for their sales to petitioner. In 1954, respondents filed the contract and their rates with the Federal Power Commission (now the Federal Energy Regulatory Commission) and obtained from it a certificate authorizing the sale of gas at the specified contract rates. In 1961, petitioner purchased certain leases in the same gas field from the United States and began producing gas on its leasehold. In 1974, respondents filed an action in a Louisiana state court, contending that petitioner's lease payments to the United States had triggered the favored nations clause. Because petitioner had not increased its payments to respondents as required by that clause, respondents sought as damages an amount equal to the difference between the price they actually were paid in the intervening years and the price they would have been paid had that clause gone into effect. Although finding that the clause had been triggered, the trial court held that the "filed rate doctrine," which prohibits a federally regulated seller of natural gas from charging rates higher than those filed with the Commission pursuant to the Natural Gas Act, precluded an award of damages for the period prior to 1972 (the time during which respondents were subject to the Commission's jurisdiction). The intermediate appellate court affirmed, but the Louisiana Supreme Court reversed, holding that respondents were entitled to damages for the period between 1961 and 1972 notwithstanding the filed rate doctrine. The court reasoned that petitioner's failure to inform respondents of the lease payments to the United States had prevented respondents from filing rate increases with the Commission, and that if they had done so the increases would have been approved. Held: The filed rate doctrine prohibits the award of damages for petitioner's breach during the period that respondents were subject to the Commission's jurisdiction. Pp. 576-585. (a) The Natural Gas Act bars a regulated seller of natural gas from collecting a rate other than the one filed with the Commission and prevents the Commission itself from imposing a rate increase for gas already sold. Here, the Louisiana Supreme Court's ruling amounts to nothing less than the award of a retroactive rate increase based on speculation about what the Commission might have done had it been faced with the facts of this case. This is precisely what the filed rate doctrine forbids. It would undermine the congressional scheme of uniform rate regulation to allow a state court to award as damages a rate never filed with the Commission and thus never found to be reasonable within the meaning of the Act. Pp. 576-579. (b) Congress has granted exclusive authority over rate regulation to the Commission, and, in so doing, withheld the authority to grant retroactive rate increases or to permit collection of a rate other than the one on file. It would be inconsistent with this purpose to permit a state court to do through a breach-of-contract action what the Commission may not do. Under the filed rate doctrine, the Commission alone is empowered to approve the higher rate respondents might have filed with it, and until it has done so, no rate other than the one on file may be charged. The court below thus has usurped a function that Congress has assigned to a federal regulatory body. Cf.Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 101 S.Ct. 1124, 67 L.Ed.2d 258. This the Supremacy Clause will not permit. Pp. 579-582. (c) Under the filed rate doctrine, when there is a conflict between the filed rate and the contract rate, the filed rate prevails. P. 582. (d) Permitting the state court to award what amounts to a retroactive right to collect a rate in excess of the filed rate "only accentuates the danger of conflict," and no appeal to equitable principles can justify such usurpation of federal authority. Pp. 583584. La., 368 So.2d 984, affirmed in part, vacated in part, and remanded. Reuben Goldberg, Washington, D. C., for petitioner. James Fleet Howell, Baton Rouge, La., for respondents. Justice MARSHALL delivered the opinion of the Court. 1 The "filed rate doctrine" prohibits a federally regulated seller of natural gas from charging rates higher than those filed with the Federal Energy Regulatory Commission pursuant to the Natural Gas Act, 52 Stat. 821, as amended, 15 U.S.C. § 717 et seq. (1976 ed. and Supp. III). The question before us is whether that doctrine forbids a state court to calculate damages in a breach-of-contract action based on an assumption that had a higher rate been filed, the Commission would have approved it. 2 * Respondents are producers of natural gas, and petitioner Arkansas Louisiana Gas Co. (Arkla) is a customer who buys their gas. In 1952, respondents1 and Arkla entered into a contract under which respondents agreed to sell Arkla natural gas from the Sligo Gas Field in Louisiana. The contract contained a fixed price schedule and a "favored nations clause." The favored nations clause provided that if Arkla purchased Sligo Field natural gas from another party at a rate higher than the one it was paying respondents, then respondents would be entitled to a higher price for their sales to Arkla.2 In 1954, respondents filed with the Federal Power Commission (now the Federal Energy Regulatory Commission)3 the contract and their rates and obtained from the Commission a certificate authorizing the sale of gas at the rates specified in the contract. 3 In September 1961, Arkla purchased certain leases in the Sligo Field from the United States and began producing gas on its leasehold. In 1974, respondents filed this state-court action contending that Arkla's lease payments to the United States had triggered the favored nations clause. Because Arkla had not increased its payments to respondents as required by the clause, respondents sought as damages an amount equal to the difference between the price they actually were paid in the intervening years and the price they would have been paid had the favored nations clause gone into effect. 4 In its answer, Arkla denied that its lease payments were purchases of gas within the meaning of the favored nations clause. Arkla subsequently amended its answer to allege in addition that the Commission had primary jurisdiction over the issues in contention. Arkla also sought a Commission ruling that its lease payments had not triggered the favored nations clause. The Commission did not act immediately, and the case proceeded to trial. The state trial court found that Arkla's payments had triggered the favored nations clause, but nonetheless held that the filed rate doctrine precluded an award of damages for the period prior to 1972. The intermediate appellate court affirmed, 359 So.2d 255 (1978), and both parties sought leave to appeal. The Supreme Court of Louisiana denied Arkla's petition for appeal, 362 So.2d 1120 (1978), and Arkla sought certiorari in this Court on the question whether the interpretation of the favored nations clause should have been referred to the Commission. We denied the petition. 444 U.S. 878, 100 S.Ct. 166, 62 L.Ed.2d 108 (1979). 5 While Arkla's petition for certiorari was pending the Supreme Court of Louisiana granted respondents' petition for review and reversed the intermediate court on the measure of damages. 368 So.2d 984 (1979). The court held that respondents were entitled to damages for the period between 1961 and 1972 notwithstanding the filed rate doctrine. The court reasoned that Arkla's failure to inform respondents of the lease payments to the United States had prevented respondents from filing rate increases with the Commission, and that had respondents filed rate increases with the Commission, the rate increases would have been approved. Id., at 991. After the decision by the Supreme Court of Louisiana, the Commission in May 1979 finally declined to exercise primary jurisdiction over the case, holding that the interpretation of the favored nations clause raised no matters on which the Commission had particular expertise. Arkansas Louisiana Gas Co. v. Hall, 7 FERC ¶ 61,175, p. 61,321.4 The Commission did, however, state: "It is our opinion that the Louisiana Supreme Court's award of damages for the 1961-1972 period violates the filed rate doctrine." Id., at 61,325, n. 18.5 Under that doctrine, no regulated seller is legally entitled to collect a rate in excess of the one filed with the Commission for a particular period. See infra, at 576-579. We granted Arkla's subsequent petition for certiorari challenging the judgment of the Louisiana Supreme Court. 449 U.S. 1109, 101 S.Ct. 916, 66 L.Ed.2d 838 (1981).6 II 6 Sections 4(c) and 4(d) of the Natural Gas Act, 52 Stat. 822-823, 15 U.S.C. §§ 717c(c) and 717c(d), require sellers of natural gas in interstate commerce to file their rates with the Commission. Under § 4(a) of the Act, 52 Stat. 822, 15 U.S.C. § 717c(a), the rates that a regulated gas company files with the Commission for sale and transportation of natural gas are lawful only if they are "just and reasonable." No court may substitute its own judgment on reasonableness for the judgment of the Commission. The authority to decide whether the rates are reasonable is vested by § 4 of the Act solely in the Commission, see FPC v. Hope Natural Gas Co., 320 U.S. 591, 611, 64 S.Ct. 281, 292, 88 L.Ed. 333 (1944), and "the right to a reasonable rate is the right to the rate which the Commission files or fixes," Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 251, 71 S.Ct. 692, 695, 95 L.Ed. 912 (1951).7 Except when the Commission permits a waiver, no regulated seller of natural gas may collect a rate other than the one filed with the Commission. § 4(d), 52 Stat. 823, 15 U.S.C. § 717c(d). These straightforward principles underlie the "filed rate doctrine," which forbids a regulated entity to charge rates for its services other than those properly filed with the appropriate federal regulatory authority. See, e. g., T. I. M. E. Inc. v. United States, 359 U.S. 464, 473, 79 S.Ct. 904, 909, 3 L.Ed.2d 952 (1959). The filed rate doctrine has its origins in this Court's cases interpreting the Interstate Commerce Act, see, e. g., Lowden v. Simonds-Shields-Lonsdale Grain Co., 306 U.S. 516, 520-521, 59 S.Ct. 612, 614, 83 L.Ed. 953 (1939); Pennsylvania R. Co. v. International Coal Co., 230 U.S. 184, 196-197, 33 S.Ct. 893, 895-896, 57 L.Ed. 1446 (1913), and has been extended across the spectrum of regulated utilities. "The considerations underlying the doctrine . . . are preservation of the agency's primary jurisdiction over reasonableness of rates and the need to insure that regulated companies charge only those rates of which the agency has been made cognizant." City of Cleveland v. FPC, 174 U.S.App.D.C. 1, 10, 525 F.2d 845, 854 (1976). See City of Piqua v. FERC, 198 U.S.App.D.C. 8, 13, 610 F.2d 950, 955 (1979). 7 Not only do the courts lack authority to impose a different rate than the one approved by the Commission, but the Commission itself has no power to alter a rate retroactively.8 When the Commission finds a rate unreasonable, it "shall determine the just and reasonable rate . . . to be thereafter observed and in force." § 5(a), 52 Stat. 823, 15 U.S.C. § 717d(a) (emphasis added). See, e. g., FPC v. Tennessee Gas Co., 371 U.S. 145, 152-153, 83 S.Ct. 211, 215, 9 L.Ed.2d 199 (1962); FPC v. Sierra Pacific Power Co., 350 U.S. 348, 353, 76 S.Ct. 368, 371, 100 L.Ed. 388 (1956). This rule bars "the Commission's retroactive substitution of an unreasonably high or low rate with a just and reasonable rate." City of Piqua v. FERC, supra, at 12, 610 F.2d, at 954. 8 In sum, the Act bars a regulated seller of natural gas from collecting a rate other than the one filed with the Commission and prevents the Commission itself from imposing a rate increase for gas already sold. Petitioner Arkla and the Commission as amicus curiae both argue that these rules taken in tandem are sufficient to dispose of this case. No matter how the ruling of the Louisiana Supreme Court may be characterized, they argue, it amounts to nothing less than the award of a retroactive rate increase based on speculation about what the Commission might have done had it been faced with the facts of this case. This, they contend, is precisely what the filed rate doctrine forbids. We agree. It would undermine the congressional scheme of uniform rate regulation to allow a state court to award as damages a rate never filed with the Commission and thus never found to be reasonable within the meaning of the Act. Following that course would permit state courts to grant regulated sellers greater relief than they could obtain from the Commission itself. 9 In asserting that the filed rate doctrine has no application here, respondents contend first that the state court has done no more than determine the damages they have suffered as a result of Arkla's breach of the contract.9 No federal interests, they maintain, are affected by the state court's action. But the Commission itself has found that permitting this damages award could have an "unsettling effect . . . on other gas purchase transactions" and would have a "potential for disruption of natural gas markets . . . ." Arkansas Louisiana Gas Co. v. Hall, 13 FERC ¶ 61,000, p. 61,213 (1980).10 10 Even were the Commission not on record in this case, the mere fact that respondents brought this suit under state law would not rescue it, for when congress has established an exclusive form of regulation, "there can be no divided authority over interstate commerce." Missouri Pacific R. Co. v. Stroud, 267 U.S. 404, 408, 45 S.Ct. 243, 245, 69 L.Ed. 683 (1925). Congress here has granted exclusive authority over rate regulation to the Commission. In so doing, Congress withheld the authority to grant retroactive rate increases or to permit collection of a rate other than the one on file. It would surely be inconsistent with this congressional purpose to permit a state court to do through a breach-of-contract action what the Commission itself may not do. 11 We rejected an analogous claim earlier this Term in Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981). There a shipper of goods by rail sought to assert a state common-law tort action for damages stemming from a regulated rail carrier's decision to cease service on a rail line. We held unanimously that because the Interstate Commerce Commission had, in approving the cessation, ruled on all issues that the shipper sought to raise in the state-court suit, the common-law action was pre-empted. In reaching our conclusion, we explained that "[a] system under which each State could, through its courts, impose on railroad carriers its own version of reasonable service requirements could hardly be more at odds with the uniformity contemplated by Congress in enacting the Interstate Commerce Act." Id., at 326, 101 S.Ct., at 1134. To hold otherwise, we said, would merely approve "an attempt by a disappointed shipper to gain from the Iowa courts the relief it was denied by the Commission." Id., at 324, 101 S.Ct., at 1134. 12 In the case before us, the Louisiana Supreme Court's award of damages to respondents was necessarily supported by an assumption that the higher rate respondents might have filed with the Commission was reasonable. Otherwise, there would have been no basis for that court's conclusion, 368 So.2d, at 991, that the Commission would have approved the rate. But under the filed rate doctrine, the Commission alone is empowered to make that judgment, and until it has done so, no rate other than the one on file may be charged. And far from approving the rate here in issue, the Commission has expressly declined to speculate on what its predecessor might have done.11 The court below, like the state court in Kalo Brick, has consequently usurped a function that Congress has assigned to a federal regulatory body. This the Supremacy Clause will not permit. 13 Respondents' theory of the case would give inordinate importance to the role of contracts between buyers and sellers in the federal scheme for regulating the sale of natural gas. Of course, as we have held on more than one occasion, nothing in the Act forbids parties to set their rates by contract. E.g., Permian Basin Area Rate Cases, 390 U.S. 747, 820-822, 88 S.Ct. 1344, 1387-1388, 20 L.Ed.2d 312 (1968); United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332, 338-340, 76 S.Ct. 373, 377-378, 100 L.Ed. 373 (1956). But those cases stand only for the proposition that the Commission itself lacks affirmative authority, absent extraordinary circumstances, to "abrogate existing contractual arrangements." Permian Basin Area Rate Cases, supra, 390 U.S., at 820, 88 S.Ct., at 1388. See United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra, 350 U.S., at 338-339, 76 S.Ct., at 377-378. That rule does not affect the supremacy of the Act itself, and under the filed rate doctrine, when there is a conflict between the filed rate and the contract rate, the filed rate controls. See, e.g., Louisville & Nashville R. Co. v. Maxwell, 237 U.S. 94, 97, 35 S.Ct. 494, 495, 59 L.Ed. 853 (1915); Texas & Pacific R. Co. v. Mugg, 202 U.S. 242, 245, 26 S.Ct. 628, 630, 50 L.Ed. 1011 (1906). "This rule is undeniably strict, and it obviously may work hardship in some cases, but it embodies the policy which has been adopted by Congress . . . ." Louisville & Nashville R. Co. v. Maxwell, supra, 237 U.S., at 97, 35 S.Ct., at 495. Moreover, to permit parties to vary by private agreement the rates filed with the Commission would undercut the clear purpose of the congressional scheme: granting the Commission an opportunity in every case to judge the reasonableness of the rate. Cf. United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra, 350 U.S., at 338-339, 76 S.Ct., at 377-378.12 14 Respondents also appeal to what they saw are equitable considerations. The filed rate doctrine and the Supremacy Clause, we are told, should not bar recovery when the defendant's misconduct prevented filing of a higher rate. We do not find this argument compelling. The court below did not find that Arkla intentionally failed to inform respondents of its lease payments to the United States in an effort to defraud them. Consequently, we are not faced with affirmative misconduct, and we need not consider the application of the filed rate doctrine in such a case.13 The courts below found that Arkla has done no more than commit a simple breach of its contract. But when a court is called upon to decide whether state and federal laws are in conflict, the fact that the state law has been violated does not affect the analysis. Every pre-emption case involves a conflict between a claim of right under federal law and a claim of right under state law. A finding that federal law provides a shield for the challenged conduct will almost always leave the state-law violation unredressed. Thus in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), the mere fact that a group of unions violated state law through their peaceful picketing did not permit enforcement of that law when it would conflict with the federal regulatory scheme. That the state-court suit was one for damages rather than for the type of relief available from the National Labor Relations Board weighed against pre-emption, not in favor of it. "[S]ince remedies form an ingredient of any integrated scheme of regulation," Justice Frankfurter wrote for the Court, "to allow the State to grant a remedy here which has been withheld from the National Labor Relations Board only accentuates the danger of conflict." Id., at 247, 79 S.Ct., at 780. 15 The same principle applies here. Permitting the state court to award what amounts to a retroactive right to collect a rate in excess of the filed rate "only accentuates the danger of conflict." No appeal to equitable principles can justify this usurpation of federal authority. III 16 We hold that the filed rate doctrine prohibits the award of damages for Arkla's breach during the period that respondents were subject to Commission jurisdiction.14 In all respects other than those relating to damages, the judgment of the Supreme Court of Louisiana is affirmed. With respect to its calculation of damages, the judgment is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. 17 So ordered. 18 Justice STEWART took no part in the consideration or decision of this case. 19 Justice POWELL, dissenting. 20 I agree with much of Justice STEVENS' dissenting opinion and would affirm the judgment of the Supreme Court of Louisiana. Respondents are entitled to the relief they seek based on Louisiana state contract law. 21 By virtue of the "most favored nations" clause in its contract with respondents, petitioner was obligated to pay respondents the higher rate it paid a comparable supplier. Petitioner did not comply with this provision, but the Court today holds that respondents nevertheless may not recover damages because they failed to file with the Commission the increased rate. It is said that the "filed rate doctrine" requires such a filing. 22 I would agree with the Court if it were clear that respondents were neglectful or otherwise at fault in not filing and seeking Commission approval of the higher rate. But the Louisiana courts found that petitioner was responsible for respondents' failure to file. Petitioner did not disclose that it was paying higher rates to another producer from the same field under comparable conditions. The Louisiana Court of Appeal expressly found that respondents' failure to comply with the filed rate doctrine was caused primarily by the "uncooperative and evasive" conduct of petitioner's officials. See 359 So.2d 255, 264 (1978). Petitioner knew the facts, and the Louisiana Supreme Court held that petitioner had a state-law duty to disclose them in order not to frustrate the "most favored nations" clause. There is no showing that respondents had any knowledge of their entitlement to invoke the clause until they finally obtained the facts through the Freedom of Information Act. In these circumstances, the filed rate doctrine should not preclude a state-law damages action. In holding to the contrary, the Court in effect rewards petitioner's breach of its state-law contractual duty to notify respondents that it was paying a higher rate to a comparable supplier. 23 Justice STEVENS, with whom Justice REHNQUIST joins, dissenting. 24 From 1961 through 1975, petitioner Arkansas Louisiana Gas Co. (Arkla) acquired natural gas from two different sources in the Sligo Gas Field in Louisiana. By the terms of a contract that was entirely consistent with the federal policies reflected in the Natural Gas Act, 52 Stat. 821, as amended, 15 U.S.C. § 717 et seq. (1976 ed. and Supp. III), Arkla was obligated to pay both sources of supply the same price.1 In fact, however, unbeknown to respondents, and in violation of their contract, Arkla paid them a substantially lower price than it paid to the United States, its other source for Sligo Field gas. No one, not even Arkla, suggests that there is any legitimate justification for the discrimination. 25 Despite the fact that Arkla breached its contract, and despite the fact that no federal policy is threatened by allowing the Louisiana courts to redress that breach, the Court today denies respondents the benefit of their lawful bargain. Surely, if the price paid to the United States was just and reasonable, the same price paid to private sellers of gas taken from the same field at the same time and delivered to the same customer also would be just and reasonable. The statutory policy favors uniformity, not secret discrimination. Yet the Court, by a wondrous extension of the so-called "filed rate doctrine," concludes that the Louisiana courts may not assess damages against petitioner for breach of its contract to pay respondents the same price it paid to a comparable supplier. Because no federal rule of law deprives the State of Louisiana of the power to prevent Arkla from profiting so handsomely from its own wrong, and because I believe that enforcement of the state court's judgment is not only consistent with federal regulatory policies, but actually will further those policies, I respectfully dissent. 26 * As a result of lengthy proceedings in the state courts, the relevant facts have been established. Arkla is an integrated utility company engaged in the natural gas business in six States.2 Over the years, it has purchased large quantities of natural gas produced in the Sligo Gas Field in Bossier Parish, La.; some of that gas was acquired from respondents, and some from the United States. By law, Arkla was prohibited from paying either of these suppliers more than the area ceiling price set by the Federal Power Commission, and it did not do so.3 By contract with the United States. Arkla was required to pay an amount established by reference "to the highest price paid for a part or for a majority of production of like quality in the same field." App. 123. By contract with respondents, Arkla was obligated to pay them a price at least as high as it paid for other gas produced from any well located in the Sligo Field.4 See ante, at 573-574, n.2. In fact, however, it paid respondents only about two-thirds of the price paid to the United States. 27 Arkla did not disclose the price differential to respondents. The Louisiana Court of Appeal found that, in response to inquiries from respondents about the arrangement with the United States, "the officials of Arkla were uncooperative and evasive." 359 So.2d 255, 264 (1978). That court characterized Arkla's nondisclosure and evasiveness as "not commendable," but held that because, under the law of Louisiana, a "party alleging fraud has the burden of establishing it by more than a mere preponderance of the evidence," respondents had failed to prove that Arkla was guilty of actual fraud. Ibid. It is clear, however, that Arkla's failure to disclose to respondents its discriminatory payments to another supplier in the same gas field constituted a breach of contract.5 28 The Louisiana Supreme Court decided that the damages for Arkla's breach of contract should be measured by the difference between the price paid to the United States and the price paid to respondents. For the period after 1972, when respondents had been formally certificated as "small producers," the court held that respondents had no obligation to file new rate schedules with the Federal Power Commission because the increased rates did not exceed the ceiling rate set by the Commission.6 Although the court recognized that respondents could not have collected higher prices during the period between 1961 and 1972 without first filing new rate schedules with the Commission,7 it held that damages for that period were nevertheless recoverable for two reasons. First, as a matter of Louisiana law, when a party's entitlement is subject to a condition, the condition is considered to have been fulfilled when performance is prevented by the other party.8 In this case, the court squarely held that respondents had been effectively precluded from making the necessary filings by Arkla's failure to inform them of its contractual arrangement with the United States.9 Second, after noting that respondents made no claim that they would have been entitled to an increase in excess of the area base rate ceilings established by the Commission,10 and after noting that an order of the Commission had indicated that it would have approved the rate increase if it had been filed,11 the court concluded that "it was more probable than not that the Commission would have approved a contractually-authorized price increase if the proper filing procedures had been followed." 368 So.2d 984, 991 (1979). 29 Summarizing the effect of the state courts' rulings, these propositions must be taken as having been established: (1) Arkla breached its contract with respondents; (2) Arkla is responsible for respondents' failure to file new rate schedules with the Commission; (3) if such schedules had been filed and if Arkla had paid respondents the same prices it paid to the United States, those prices would not have exceeded the applicable area rate ceilings established by the Commission; and (4) because prices well below the applicable rate ceilings are at the very least presumptively "just and reasonable," it is indeed more probable than not that the Commission would have approved the new rate schedule if it had been promptly filed. These propositions are plainly adequate to support respondents' recovery of damages as a matter of state law. In my opinion, they also support the conclusion that the applicable rules of state law have not been pre-empted by federal law. II 30 Section 4 of the Natural Gas Act, 52 Stat. 822, 15 U.S.C. § 717c, identifies four separate federal policies that are arguably implicated by this litigation. The judgment of the Supreme Court of Louisiana is fully consistent with each of these policies. 31 First, subsection (a) of § 4 requires that all charges paid or received by regulated companies for the sale of natural gas shall be "just and reasonable."12 In this case, there is no dispute about the fact that the prices received from Arkla by the United States were well below the relevant area ceiling rates fixed by the Federal Power Commission. It is equally clear that payment of the same prices to respondents for comparable gas contemporaneously produced in the same field also would have been well below the ceiling. Both the Louisiana courts and the Commission have repeatedly and unambiguously determined that if respondents had been paid in accordance with the terms of their contract, there would have been no violation of the applicable area ceiling rates.13 Indeed, in noting that respondents were not required to file new rates for the period after they had been certificated as small producers in 1972, the Commission expressly found "that the rates requested are within what the Commission has determined to be the zone of reasonableness."14 32 It is perfectly clear that an award of damages against Arkla measured by the prices it paid to the United States will not violate the Act's substantive prohibition against charging rates that are not "just and reasonable." That prohibition has the same application to respondents for the period after 1972, when they were certificated as small producers, as it does for the period prior to 1972. In neither of those periods did the Commission specifically determine that the rates were "just and reasonable," but the record makes it clear that those rates were in fact within the zone of reasonableness established by the Commission during both periods. For the purpose of determining whether damages are recoverable in a state-court breach-of-contract suit, there is no reason to treat the two periods differently. There is simply nothing in this record to suggest that a state-court judgment that has the effect of allowing respondents to receive the same prices that Arkla paid to the United States would violate the substantive policy underlying the statutory requirement that all rates be just and reasonable.15 33 Second, subsection (b) of § 4 expresses the strong federal policy—reflected in most regulatory statutes—against discriminatory pricing.16 The result the Court reaches today not only tolerates a blatant violation of that policy, but also will encourage such violations in the future. 34 Entirely apart from Arkla's contractual undertaking to pay respondents the same price it paid to other producers of comparable gas in the same field, this statutory policy surely favors a holding that results in equal treatment of competing suppliers. Nothing other than Arkla's proven wrongdoing provides any explanation for its discrimination against respondents. For no one has pointed to any even arguably legitimate justification for any differential pricing at all—let alone a differential of the magnitude revealed by this record. The lesson this case will teach is that, notwithstanding the plain language in § 4(b), it is perfectly proper to grant an undue preference if one can conceal it. 35 Third, subsection (c) of § 4 expresses a policy favoring the public disclosure of all rates and charges and all contracts which affect rates.17 The contractual arrangement between Arkla and the United States relating to production in the Sligo Gas Field was not made available to the public. Only by resort to the remedies provided by the Freedom of Information Act were respondents able to obtain access to that contract and to confirm their suspicions that Arkla was violating its "favored nations" undertaking. By rewarding Arkla's successful concealment of a contract that directly affected rates payable for gas produced in the Sligo Field, the Court simply ignores the statutory policy which the Louisiana Supreme Court's judgment would plainly serve. 36 Fourth, subsection (d) of § 4 imposes a procedural requirement that is designed to protect the substantive policy interests reflected in the three preceding subsections.18 Because none of these substantive policies is infringed in the slightest by the state court's judgment, it surely exalts procedure over substance to deny respondents relief because they were wrongfully prevented from following the normal statutory procedures. 37 Under the normal procedures, no change in rates may take effect until after 30 days' notice is given to the Commission and to the public by filing a new schedule with the Commission. This filing requirement is designed to give the Commission the opportunity to prevent new rates from going into effect if it has reason to believe the new rates are not just and reasonable. In this case, if the record provided any basis for believing that the rates that Arkla paid to the United States were not just and reasonable—or that paying the same rates to these respondents would not have been equally just and reasonable—it might make some sense to argue that the filing requirement of § 4(d) precludes recovery of damages for breach of contract. But to regard the filing requirement as an inflexible barrier to any recovery regardless of the substantive merits of the claim is neither necessary to further, nor even consistent with, the purpose of § 4(d).19 38 It is commonplace that damages must often be measured by reference to a standard or an event that did not actually materialize. When an executory contract is breached, the attempt to measure the injured party's damages requires an evaluation of the benefits that probably would have resulted if the breach had not occurred.20 If an attorney hired by respondents to file a new rate schedule negligently failed to do so, he might defend against a malpractice complaint by arguing that respondents were not damaged because the Commission would have rejected the new rates in all events. But if respondents could prove that rejection was highly unlikely, it would be absurd to deny them any recovery at all simply because the defendant's own wrongdoing had made it impossible to know with absolute certainty that new rates would have been accepted as "just and reasonable." In damages actions, whether in tort or in breach of contrast, it is often necessary to deal in probabilities. 39 This case also raises a question that requires the evaluation of probabilities. Because the rates in issue were below the applicable Commission ceilings, and because no legitimate reason for rejecting them has been adduced, it is only reasonable to presume that they would have become effective routinely. As a garden-variety issue of damages, there is no significant difference between this case and one in which a purchaser might have employed thugs to waylay the respondents' lawyer on the way to the Commission to prevent him from filing a new schedule. 40 Nor in terms of federal regulatory policy is there any difference between this case and hypothetical cases involving actual fraud or violence.21 If damages cannot be measured by reference to any standard except a rate that has been duly filed with the Commission in accordance with the procedural requirements of § 4(d), there could be no state-law recovery no matter what kind of wrong prevented respondents from filing. And conversely, if a high probability that a timely filing would have been accepted is an adequate standard for measuring damages in a tort case, why should not that probability be adequate in a breach-of-contract case as well? The fact that a regulated carrier or seller has no right to collect a rate or price that has not been duly filed with the appropriate regulatory body is surely not a sufficient reason for leaping to the conclusion that an injured party may never prove damages by reference to a standard that is less certain than a filed rate. 41 The federal policy that comes closest to supporting Arkla's position is that of protecting the Commission's primary jurisdiction to determine whether or not a new rate is reasonable. But in this case the basic reasonableness determination was made by the Commission when it established the area rate ceilings. Because the rates at issue in this case are well below those ceilings, the danger that a court might venture into the area of ratemaking on its own is not present. Moreover, on more than one occasion Arkla requested the Commission to assume jurisdiction of this controversy, and the Commission consistently declined to do so.22 In assessing damages for the breach of an executory contract, the state courts exercised a jurisdiction that the Commission did not have. In no sense did the Louisiana courts usurp the primary jurisdiction of the Commission. In sum, whether we test the state-court judgment against the substantive or the procedural requirements of the federal statute, it seems perfectly clear that the relief that has been awarded is fully consistent with federal policy. III 42 Although, until today, the term "filed rate doctrine" had never been used by this Court, our prior decisions have established rather clear contours for the doctrine. It apparently encompasses two components, both of which are entirely consistent with the award of damages ordered by the Louisiana Supreme Court in this case. 43 First, the two cases that are generally accepted as the source of the doctrine, Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912,23 and T. I. M. E. Inc. v. United States, 359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952,24 established that an entity whose prices or rates are regulated by a federal agency has no federal right to claim any rate or price that has not been filed with and approved by the agency. Thus, these respondents, without either filing the escalated rates or obtaining a waiver of the filing requirement, have no federal right to require Arkla to pay the higher rates. That does not mean, however, that they have no contractual right to require Arkla to do so. Cf. Pan American Petroleum Corp. v. Superior Court, 366 U.S. 656, 662-664, 81 S.Ct. 1303, 1307-1308, 6 L.Ed.2d 584. The question whether a state court could measure damages for breach of contract, or a tort, by reference to a rate schedule that presumably would have been accepted if it had been filed earlier is by no means the same as the question whether respondents had a federal right to collect such rates. There would be a valid federal objection to such a damages award if there were reason to believe that the parties had entered into an agreement to circumvent either a procedural or a substantive requirement of the Natural Gas Act, or if the litigation arguably represented a collusive method of granting an unlawful preference. But no such considerations are present in this case. 44 Second, Montana-Dakota Utilities and T. I. M. E. Inc. also recognize that the task of determining in the first instance what rate should be considered "reasonable" within the meaning of a regulatory statute is not a judicial task, but rather is a task for the administrative agency. But when the zone of reasonableness has already been established by an agency— as it has been in this case—that consideration simply does not apply to an award of damages measured by reference to a standard that is well within that zone. 45 In my judgment, the cases which gave rise to the filed rate doctrine are plainly distinguishable from the present case, and thus do not support the result the Court reaches today. In Montana-Dakota Utilities and T. I. M. E. Inc., the plaintiff's claim was that the filed rate, which had already been approved by the relevant federal regulatory body, was nonetheless unreasonable in violation of federal statutory requirements.25 The plaintiff's suit thus directly challenged the rate determinations of the federal agency without compliance with the judicial review procedures established in the governing statute.26 In the present case, in contrast, respondents do not contend that the filed rate approved by the Commission, is unreasonable or otherwise inconsistent with federal law; they contend only that they had a contractual right to receive a different reasonable rate under their contract with Arkla. Respondents do not seek to enforce a federal right outside the procedures established for the vindication of such rights, nor do they seek to overturn the determinations of the expert federal agency; respondents merely seek to recover the higher of two rates, both of which are within the federal zone of reasonableness, because it is the rate they contracted to receive.27 Cf. Hewitt-Robins Inc. v. Eastern Freight-Ways, Inc., 371 U.S. 84, 83 S.Ct. 157, 9 L.Ed.2d 142. 46 The unanimous decision in United Gas Pipeline Co. v. Mobile Gas Service Co., 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373, sheds more light on this case than do the cases on which the Court places its primary reliance. In United Gas, United, a regulated natural gas producer, supplied gas to Mobile under a long-term contract which had been filed with and approved by the Federal Power Commission. United thereafter filed with the Commission a new rate that purported to increase the price payable by Mobile under the contract. The Commission denied Mobile's request that it reject United's filing, and held that the increased rate was the applicable rate unless and until it was declared unlawful by the Commission. Id., at 336-337, 76 S.Ct., at 376-377. This Court rejected the Commission's position, holding that compliance with the filing procedure of § 4(d) was effective to establish a new rate only if that rate were otherwise lawful, that is, in compliance with contractual requirements. Id., at 339-340, 76 S.Ct., at 378. The Court found that although the new rate filed by United had been established in compliance with federal law, it was unlawful under the contract. The Court accordingly held that the Commission had erred in failing to reject United's filing, and directed that United make restitution to Mobile of all overpayments. Id., at 347, 76 S.Ct., at 382. 47 Under the rationale in United Gas, private parties have a right to establish a lawful rate by contract as long as the rate they have agreed upon is just and reasonable. When the contract rate is within the zone of reasonableness established by the Commission, that contract rate is presumptively lawful.28 and not subject to unilateral change.29 The Commission has no power to specify a rate other than the contract rate when that rate is itself just and reasonable.30 Neither the filed rate doctrine, nor any other principle of federal regulatory law, requires the result the Court announces today. IV 48 In an attempt to bolster its reliance on the filed rate doctrine, Arkla contends that we cannot be sure that if respondents had been notified of the United States lease and had filed a new rate schedule in 1961, the Commission would have approved their new rates. This argument is supported by statements in an order entered by the Commission on November 5, 1980.31 That order was entered after the petition for certiorari had been filed, and after the United States and the Commission had taken the position as amici in this Court that the Louisiana Supreme Court had erred in awarding damages for the period between 1961 and 1972.32 Because the Commission had decided to lend its support to Arkla in this Court, it is not surprising that some of the statements in that order are consistent with Arkla's argument. What is most significant about that order is the fact that the Commission does not advance any reason why a rate schedule filed by respondents in 1961 in accordance with the favored nations clause of their contract with Arkla would not have been deemed just and reasonable. 49 Although the Commission stated that it was reluctant to speculate about what its predecessors might have done in response to such a filing, the only issues that it now can describe as speculative are issues that have been decided against Arkla. I do not believe speculation that the Commission might have committed error in 1961 is an adequate reason for not presuming that just and reasonable rates would have been routinely approved when filed. 50 The first issue on which the Commission indicates a reluctance to speculate is a question of contract interpretation, namely, whether the favored nations clause had been triggered by Arkla's arrangement with the United States. There is no reason for the Commission, or anyone else, to speculate on this question. The Commission twice was presented with the opportunity to decide this question, and it twice declined to do so.33 That question now has been correctly resolved by the Louisiana courts. The other issue on which the Commission declines to speculate is whether its predecessor would have regarded a favored nations clause in a pre-1961 contract as lawful. Again, speculation is wholly unnecessary. The Commission actually confronted that precise issue in 1961. Although it concluded that such escalation clauses should be prohibited in the future, it specifically decided that it would not eliminate such provisions from previously executed contracts.34 That the Commission's treatment of that issue in 1961 is applicable to the contracts between respondents and Arkla is demonstrated by the fact that the escalated rates are accepted by the Court and the Commission for the purpose of computing respondents' damages for the period between 1972 and 1975. If the favored nations clause in this pre-1961 contract were not perfectly lawful, respondents would receive no damages at all, rather than the truncated recovery which the Court's holding today allows. 51 The Commission also has expressed concern about the impact of this damages award on its broader "regulatory responsibilities." See Arkansas Louisiana Gas Co. v. Hall, 13 FERC ¶ 61,100, p. 61,213 (1980). Two specific concerns are identified—that the burden of the award might be passed on to consumers, and that it might give rise to other claims that favored nations clauses have been breached. The short answer to the first concern is that there is no more reason to assume that this award will justify an increase in utility rates than any other damages judgment that a public utility may be required to pay; if the regulatory concern is valid, the agency having jurisdiction over Arkla's sales has ample authority to require its stockholders rather than its customers to bear this additional cost. The second concern seems exaggerated because it applies only to contracts executed before 1961, see supra, at 606 and this page, and n. 34, and it seems unlikely that many large purchasers of natural gas could successfully have concealed violations of escalation clauses from their suppliers. To the extent that this case does have counterparts in such contracts, however, it seems to me that those cases should be decided in the same way. After all, we are concerned here merely with cases in which a utility has failed to pay an agreed price that is well below the just and reasonable ceiling set by the Commission. 52 I agree that speculation about what the Commissioners might have done in 1961 is inappropriate. Unlike the Court, however, I see no need to speculate in this case. Rather than speculate, I would presume that the Commission would have acted in a lawful manner and that it would then have perceived the correct answer to disputed questions that have subsequently been resolved. 53 In my judgment, the Court's decision today is founded on nothing more than the mechanical application to this case of principles developed in other contexts to serve other purposes. The Court commits manifest error by applying the filed rate doctrine to ratify action by Arkla that not only breached its contract with respondents, but also directly undercut the substantive policies identified in § 4 of the Natural Gas Act. Because absolutely no federal interest is served by today's intrusion into state contract law, I respectfully dissent. 1 Respondents include both original parties to the contract and successors in interest to parties to the contract. 2 The favored nations clause provided in relevant part: "If at any time during the term of this agreement Buyer should purchase from another party seller gas produced from the subject wells or any other well or wells located in the Sligo Gas Field at a higher price than is provided to be paid for gas delivered under this agreement, then in such event the price to be paid for gas thereafter delivered hereunder shall be increased by an amount equal to the difference between the price provisions hereof and the concurrently effective higher price provisions of such subsequent contract." App. 99. 3 On October 1, 1977, the relevant responsibilities of the Federal Power Commission were transferred to the Federal Energy Regulatory Commission. See 10 CFR § 1000.1(d) (1980). The term "Commission" in this opinion refers to the Federal Power Commission when referring to action taken prior to that date and to the Federal Energy Regulatory Commission when referring to action taken after that date. 4 The May 1979 order was actually the Commission's second decision on primary jurisdiction. The Commission initially declined to exercise primary jurisdiction in March 1976, citing a then-existing policy against assuming jurisdiction over matters pending before a court. Arkansas Louisiana Gas Co. v. Hall, 55 F.P.C. 1018, 1020-1021. On rehearing, the Commission further noted that on October 19, 1972, respondents had gained "small producer" status, see n. 5, infra, and were therefore no longer required to make rate increase filings. Arkansas Louisiana Gas Co. v. Hall, 56 F.P.C. 2905 (1976). Arkla challenged the Commission's automatic deferral policy before the United States Court of Appeals for the District of Columbia Circuit. While the matter was pending before that court, the Commission asked that the record be remanded to it for further consideration, and the Court of Appeals granted the motion. The May 1979 order resulted from this remand, and review of that order is pending before the Court of Appeals. 5 The Commission limited its disagreement with the state court to the period before 1972 because of its additional finding that as of October 1972 respondents had become "small producers" and were no longer required to file their rates with the Commission. See 18 CFR § 157.40 (1980). It therefore took the position that the filed rate doctrine did not apply to respondents after that date. Arkla disputes here the administrative determination that respondents met the criteria to be considered "small producers." The Commission's finding itself is not before us, and we do not believe that the state courts erred in deferring to that finding. 6 Subsequent to the award of damages but prior to our action on Arkla's petition for certiorari, the Commission informed respondents that in order to collect a damages award amounting to a retroactive rate increase, they would have to ask the Commission to waive the filing requirements of the Natural Gas Act. Respondents sought a waiver, which was denied by the Commission. Arkansas Louisiana Gas Co. v. Hall, 13 FERC ¶ 61,000 (1980). In its order, the Commission explained that in order to grant a waiver, it would have to "speculat[e] as to what the Commission would or would not have done in 1961 . . . ." Id., at 61,213. The Commission added that because the request for an increase called for contract interpretation, the 1961 Commission "would almost certainly have either suspended or rejected the filing." Ibid. The Commission added that granting a waiver in this case would present a "potential for disruption of natural gas markets." Ibid. Review of that order is pending before the United States Court of Appeals for the Fifth Circuit. 7 Montana-Dakota Utilities was a case under the Federal Power Act rather than under the Natural Gas Act, but as we have previously said, the relevant provisions of the two statutes "are in all material respects substantially identical." FPC v. Sierra Pacific Power Co., 350 U.S. 348, 353, 76 S.Ct. 368, 371, 100 L.Ed. 388 (1956). In this opinion we therefore follow our established practice of citing interchangeably decisions interpreting the pertinent sections of the two statutes. See, e. g., ibid.; Permian Basin Area Rate Cases, 390 U.S. 747, 820-821, 88 S.Ct. 1344, 1387-1388, 20 L.Ed.2d 312 (1968). 8 Although the Commission may not impose a retroactive rate alteration and, in particular, may not order reparations, see, e. g., FPC v. Sunray DX Oil Co., 391 U.S. 9, 24, 88 S.Ct. 1526, 1534, 20 L.Ed.2d 388 (1968), it may "for good cause shown," 15 U.S.C. § 717c(d), waive the usual requirement of timely filing of an alteration in a rate. Assuming, arguendo, that waiver is available for retroactive collection of a higher rate than the one on file, we note that in this case, the Commission has expressly found that respondents have not demonstrated that good cause exists for waiving the filing requirements on their behalf. See n. 6, supra. 9 Arkla seeks to have this Court determine, as a matter of law, whether it actually breached its contract with respondents. This we decline to do. We see no reason to disagree with the Commission's judgment that interpretation of the favored nations clause raises only questions of state law. The state court found that the contract had been breached. We will not overturn the construction of Louisiana law by the highest court of that State. 10 Apparently in an effort to challenge this determination, respondents assert that the damages would be paid entirely from Arkla's corporate assets and would not be passed on to consumers. We see no reason why this fact, even if true, would alter our analysis. In any case, the record does not support respondents' assertion that Arkla could not pass the damages award along to its customers. In its order denying respondents' request for a waiver of the § 4(d) notice requirement, the Commission conceded that Arkla would have the right to do so, even though all the natural gas for which Arkla would be paying was long since sold. 13 FERC, at 61,213. 11 Respondents assert, and the Supreme Court of Louisiana found, that the Commission has expressly approved the damages award through its repeated statements that the award is not in excess of applicable ceilings. This is simply not the case. The court below based its conclusion on the Commission's order denying rehearing on Arkla's request that it exercise primary jurisdiction. 368 So.2d, at 991, citing Arkansas Louisiana Gas Co. v. Hall, 56 F.R.C. 2905 (1976). Nothing in that order approves the retroactive rate increase; it only lists, at the request of the parties, "the maximum rates . . . which, if contractually authorized and if proper filing procedures had been followed, would have been approved . . . ." Id., at 2906. The fact that the retroactive rate increase was within the rate ceiling does not mean that it would have been approved if actually submitted, and certainly does not mean that it would be approved after the fact. In rejecting respondents' request for a waiver of its filing requirements, the Commission set forth several reasons for disapproving a rate increase falling within the ceiling rates and expressly declined to speculate on what the earlier Commission might have done. See n. 6, supra. In addition to the order denying rehearing, respondents also rely on language in the Commission's May 18, 1979, order declining to exercise primary jurisdiction and in a letter from the Commission's staff counsel. Staff counsel's letter is ambiguous at best, and in any case, it should be unnecessary to add that staff counsel may not speak for the Commission. The language relied on in the May 18 order appears to have reference only to damages for the period after 1972. The same order twice disapproves granting damages for the period prior to respondents' assumption of small-producer status. See Arkansas Louisiana Gas Co. v. Hall, 7 F.E.R.C. ¶ 61,175, p. 61,325, n. 18 (1979) ("It is our opinion that the Louisiana Supreme Court's award of damages for the 1961-1972 period violates the filed rate doctrine"); id., at 61,325, n. 20 ("As we stated above, the Louisiana Supreme Court, in effect, waived one of this Commission's filing requirements when it determined that [respondents'] group was entitled to damages back to 1961. This holding of the Louisiana Supreme Court conflicts with the filed rate doctrine"). The unconnected and ambiguous references on which respondents and the court below rely to find Commission "approval" of the retroactive rate increase cannot override these express statements of disapproval. 12 None of the other cases relied on by respondents commands a contrary result. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950), held only that federal courts are not granted jurisdiction over state-law declaratory judgment actions merely because a federal question might potentially be raised in defense of the suit. The only issue in Skelly Oil was whether certain contracts had properly been terminated, so there was no occasion to consider whether the filed rate doctrine barred a damages remedy. United Gas Pipe Line Co. v. Memphis Light Gas and Water Division, 358 U.S. 103, 79 S.Ct. 194, 3 L.Ed.2d 153 (1958), like the cases mentioned in text, held only that the Act does not automatically abrogate all private contracts. And Pan American Petroleum Corp. v. Superior Court, 366 U.S. 656, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961), stated only that a state rather than a federal court was the proper forum in which a buyer should bring a breach-of-contract action to obtain a refund of charges in excess of the filed rate. Permitting that action in no way contravened the filed rate doctrine; in fact, it furthered the doctrine's purpose. We note that a panel of the District of Columbia Circuit stated in City of Cleveland v. FPC, 174 U.S.App.D.C. 1, 10-11, 525 F.2d 845, 854-855 (1976), that "the proposition that a filed rate variant from an agreed rate is nonetheless the legal rate wages war with basic premises of the . . . Act." That case is immediately distinguishable from the one before us because it involved a claim that the rate itself had been filed in violation of a contract. We express no opinion on the merits of that case, but to the extent that the quoted dictum would lead to a contrary result in the instant case, it is expressly disapproved. 13 We agree with the Commission's finding that Arkla "could have reasonably assumed that the government royalty payment did not trigger the [favored nations clause]." 13 FERC, at 61,213. Because the record contains no findings of misconduct, respondents' argument that this Court has consistently recognized the doctrine of estoppel has no relevance. We save for another day the question whether the filed rate doctrine applies in the face of fraudulent conduct. 14 There is no bar to damages for the period after respondents gained "small producer" status. See n. 5, supra. 1 This obligation was created by the "favored nations clause" in the natural gas sales contract between Arkla and respondents. The clause is quoted ante, at 573-574, n.2. 2 Arkla does business in Arkansas, Louisiana, Texas, Oklahoma, Kansas, and Missouri. 3 For example, in 1968 the relevant area base rate ceiling established by the Federal Power Commission for sales of natural gas was 18.6 cents per thousand cubic feet (Mcf). See Arkansas Louisiana Gas Co. v. Hall, 56 F.P.C. 2095, 2096 (1976). The trial court in this case found that during 1968 Arkla paid the United States a fraction over 14 cents per Mcf. See App. 11. Under the terms of the 1952 contract with respondents, Arkla paid a fraction under 10 cents per Mcf for gas produced during 1968. See id., at 98. 4 Although Arkla consistently has contended that its lease arrangement with the United States was not a "purchase" within the meaning of the favored nations clause in its contract with respondents, that issue has been resolved against Arkla by every court that has considered it. See id., at 16; 359 So.2d 255, 261-262 (La.App.1978); 368 So.2d 984, 989, and n. 4 (La.1979). See also Eastern Petroleum Co. v. Kerr-McGee Corp., 447 F.2d 569 (CA7 1971). The Court properly declines to reopen this question of state law. See ante, at 579, n. 9. 5 Because the Louisiana courts held that the contract required Arkla to pay to respondents the higher price that was being paid to the United States, and because such payments could not have been made without revealing the existence of the higher price, there can be no doubt about Arkla's contractual duty to disclose the differential even though the Louisiana Supreme Court had no occasion to comment on this specific obligation other than by noting the applicability of the principle "that one should not be able to take advantage of his own wrongful act." 368 So.2d, at 990. 6 The court explained the significance of respondents' certification as small producers: "A 'small producer' (as defined by the Commission's regulations) may obtain a 'small producer certificate' exempting it from the requirement of having to file a rate schedule as long as the increase in rate does not exceed the ceiling rate set by the Commission. See 18 C.F.R. § 157.40. Several of the plaintiffs obtained 'small producer certificates' in October 1972, and the certificates issued to those parties were made effective as to all plaintiffs by order of the Commission." Ibid. 7 Throughout this opinion, the term "Commission" refers to the Federal Power Commission with respect to actions taken before October 1, 1977, and to the Federal Energy Regulatory Commission with respect to actions taken thereafter. See ante, at 574, n. 3. 8 This state-law rule was explained, as follows: "Article 2040, properly interpreted, means that the condition is considered fulfilled, when it is the debtor, bound under that condition, who prevents the fulfillment. George W. Garig Transfer v. Harris [226 La. 117, 75 So.2d 28 (1954)]; Southport Mill v. Friedrichs [171 La. 786, 132 So. 346 (1931)]; Morrison v. Mioton [163 La. 1065, 113 So. 456 (1927)]. This rule is but an application of the long-established principles of law that he who prevents an thing may not avail himself of the non-performance he has occasioned and that one should not be able to take advantage of his own wrongful act. See Cox v. Department of Highways, 252 La. 22, 209 So.2d 9 (1968)." 368 So.2d, at 990. 9 "To realize this higher, contractually-authorized price, plaintiffs, pursuant to the Natural Gas Act, were required to file new rate schedules with the Commission. However, plaintiffs were effectively precluded from making the requisite filings because they were not, at any time, informed by defendant that it was, in fact, paying a higher price to another party seller. Although defendant was only bound to pay plaintiffs a higher price if plaintiffs filed new rate schedules with the Commission, it is apparent that defendant prevented the fulfillment of that condition (plaintiffs filing with the Commission) by failing to inform plaintiffs of its contractual arrangements with the United States government. Pursuant to article 2040 and this court's jurisprudence interpreting that article, the condition (that plaintiffs file new rate schedules) is considered fulfilled." Ibid. 10 The Louisiana Supreme Court expressly noted its understanding of respondents' position: "We note that plaintiffs make no claim that they would have been entitled to a price increase under their contract in excess of the respective area base rate ceilings for sales of natural gas as established by order of the Commission." Id., at 991, n. 7. 11 At trial, a November 8, 1976 order of the Commission was produced which indicated the maximum rates to which plaintiffs would have been entitled if contractually authorized and if proper filing procedures had been followed (Exhibit D-59). The Commission clearly indicated in its order that it would have approved such rates. No evidence was adduced by defendant to establish that Commission approval would have been unlikely." Id., at 991 (emphasis in original). 12 Section 4(a) of the Act provides: "All rates and charges made, demanded, or received by any natural-gas company for or in connection with the transportation or sale of natural gas subject to the jurisdiction of the Commission, and all rules and regulations affecting or pertaining to such rates or charges, shall be just and reasonable, and any such rate or charge that is not just and reasonable is declared to be unlawful." 52 Stat. 822, 15 U.S.C. § 717c(a). 13 See App. 18-19; 368 So.2d, at 991, and n. 7; 56 F.P.C., at 2906. 14 In an order entered on May 18, 1979, declining to exercise jurisdiction to determine whether Arkla had violated the favored nations clause in its contract with respondents, the Federal Energy Regulatory Commission stated: "Finally, we must decide now what impact this case has on our regulatory responsibilities. This type of case, involving small producers not required by regulation under the Natural Gas Act to file for rate increases authorized by contract, is not a matter of great import to our regulatory responsibility as we find no need for a uniform interpretation of a contractual provision, and find that the rates requested are within what the Commission has determined to be the zone of reasonableness. "On the facts of this case, the damages do not exceed applicable area ceiling rates. The Louisiana Supreme Court concluded that the Hall group was entitled to damages measured by the difference between the price Arkla paid the United States under the royalty agreement and the price it paid the Hall group. In so doing, it noted that it considered the fact that the Commission, in previous orders in this case, had stated the maximum rates to which the Hall group would have been entitled if contractually authorized and if proper filing procedures had been followed. The Supreme Court of Louisiana further stated: "We note that plaintiffs make no claim that they would have been entitled to a price increase under their contract in excess of the respective area base rate ceilings for sales of natural gas as established by order of the Commission. "In light of the fact that the Hall group makes no claim for damages higher than the applicable area ceiling rates, that the Louisiana Supreme Court did not authorize rates higher than the applicable area ceiling rates, and that the state district court on remand from the Louisiana Supreme Court will presumably not award damages higher than the area ceiling rates, we do not feel that our regulatory responsibilities are so affected that we must exercise our jurisdiction in this case." Arkansas Louisiana Gas Co. v. Hall, 17 FERC ¶ 61,175, pp. 61,323-61,324 (1979) (footnotes omitted). 15 Arkla has argued that the award of damages improperly included an amount attributable to the liquefiable hydrocarbons in the natural gas produced from respondents' wells. If that argument were valid, it would simply establish an error in the computation of the amount required to be paid to respondents under their contract, and would require adjustment of the post-1972, as well as the pre-1972, award. No tribunal has found any greater merit in this argument than in Arkla's continuing claims that it did not breach its contract because its lease arrangement with the United States did not trigger the favored nations clause, and that respondents are not really small producers. At any rate, Arkla has challenged the Louisiana courts' computation of damages in a separate petition for certiorari, No. 79-1896, Arkansas Louisiana Gas Co. v. Hall (vacated and remanded, 453 U.S. 917, 101 S.Ct. 3152, 69 L.Ed.2d 999), and the question thus is not properly presented here. 16 Section 4(b) provides: "No natural-gas company shall, with respect to any transportation or sale of natural gas subject to the jurisdiction of the Commission, (1) make or grant any undue preference or advantage to any person or subject any person to any undue prejudice or disadvantage, or (2) maintain any unreasonable difference in rates, charges, service, facilities, or in any other respect, either as between localities or as between classes of service." 52 Stat. 822, 15 U.S.C. § 717c(b). 17 Section 4(c) provides: "Under such rules and regulations as the Commission may prescribe, every natural-gas company shall file with the Commission, within such time . . . and in such form as the Commission may designate, and shall keep open in convenient form and place for public inspection, schedules showing all rates and charges for any transportation or sale subject to the jurisdiction of the Commission, and the classifications, practices, and regulations affecting such rates and charges, together with all contracts which in any manner affect or relate to such rates, charges, classifications, and services." 52 Stat. 822, 15 U.S.C. § 717c(c). 18 Section 4(d) provides: "Unless the Commission otherwise orders, no change shall be made by any natural-gas company in any such rate, charge, classification, or service, or in any rule, regulation, or contract relating thereto, except after thirty days' notice to the Commission and to the public. Such notice shall be given by filing with the Commission and keeping open for public inspection new schedules stating plainly the change or changes to be made in the schedule or schedules then in force and the time when the change or changes will go into effect. The Commission, for good cause shown, may allow changes to take effect without requiring the thirty days' notice herein provided for by an order specifying the changes so to be made and the time when they shall take effect and the manner in which they shall be filed and published." 52 Stat. 823, 15 U.S.C. § 717c(d). 19 One of the weaknesses in the Court's consideration of this issue is its implicit assumption that the filing requirement has the same importance under all regulatory statutes. Under the Natural Gas Act, however, the source of the rate is the parties' contract which must be filed to enable the Commission to review its reasonableness; in contrast, under the Interstate Commerce Act, because private rate agreements are precluded, the source of the rate is the carrier's filed tariff. As Justice Harlan pointed out for a unanimous Court in United Gas Pipeline Co. v. Mobile Gas Service Corp., 350 U.S. 332, 338, 76 S.Ct. 373, 377, 100 L.Ed. 373: "In construing the Act, we should bear in mind that it evinces no purpose to abrogate private rate contracts as such. To the contrary, by requiring contracts to be filed with the Commission, the Act expressly recognizes that rates to particular customers may be set by individual contracts. In this respect, the Act is in marked contrast to the Interstate Commerce Act, which in effect precludes private rate agreements by its requirement that the rates to all shippers be uniform, a requirement which made unnecessary any provision for filing contracts." 20 Every first-year law student is familiar with this rule: "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it." Hadley v. Baxendale, 9 Ex. 341, 354, 156 Eng.Rep. 145, 151 (1854). 21 The Court seems to attach great significance to the fact that respondents failed to prove that Arkla was guilty of actual fraud, see ante, at 583-584, and n. 13, but suggests no reason why the case might be decided differently if actual fraud had been proved by clear and convincing evidence. Surely a state court should not be able to avoid federal pre-emption of state remedies by applying a different label to conduct with precisely the same economic consequences. Cf. Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 252-253, 71 S.Ct. 692, 695-696, 95 L.Ed. 912. 22 See Arkansas Louisiana Gas Co. v. Hall, 55 F.P.C. 1018 (1976); 7 FERC, at ¶ 61,175 (1979). 23 In Montana-Dakota Utilities, the plaintiff claimed injury because the filed rates that had applied to past transactions with an affiliate allegedly were unjust and unreasonable, and had been fraudulently established. The ultimate issue was whether a federal claim for relief had been alleged, because there was no diversity of citizenship to support federal jurisdiction. The Court first held that the Federal Power Act's requirement that rates be reasonable did not provide a statutory basis for a federal cause of action because the courts have no authority to determine what a reasonable rate in the past should have been. The Court then held that the allegations of fraud added nothing to the plaintiff's federal claim. Assuming that an actionable wrong had been alleged, the Court concluded that in the absence of diversity, a federal court could only dismiss the complaint for failure to state a claim cognizable in federal court. And finally, the Court rejected the argument of Justice Frankfurter in dissent that it should fashion an implied federal judicial remedy in which the issue of reasonableness could be referred to the Commission. In refusing to create a federal remedy for a common-law fraud, the Court assumed that appropriate relief would be available in a state tribunal. Its opinion surely cannot be read as pre-empting any such state claim. 24 In T. I. M. E. Inc., the Court refused to find a federal remedy for a shipper who claimed that the rates charged by a motor carrier were unreasonable and unlawful even though they had been properly filed with the Interstate Commerce Commission. The case involved little more than a determination that the express remedies afforded against rail carriers in Part I and against water carriers in Part III of the Interstate Commerce Act, having been deliberately omitted from Part II, which regulated motor carriers, would not be judicially implied. In T. I. M. E. Inc., as in Montana-Dakota Utilities, the question was whether a federal court had authority to decide that a filed rate was unlawful because it violated the reasonableness requirement of the relevant regulatory statute. In the present case, however, there is no claim that the price that Arkla paid to respondents was illegal in any sense. Both that price and the higher price paid to the United States were well within the zone of reasonableness and in full compliance with the statute's substantive requirements. The fact that respondents might not be able to assert a federal claim for violation of the federal statute sheds no light on the question whether their state-law cause of action for breach of contract may be maintained. 25 See also Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553. 26 The concise statement of the holding in Montana-Dakota Utilities indicates that the Court's central concern was to bar actions which asserted a federal right to a "reasonable" rate other than that declared to be reasonable by the Commission: "We hold that the right to a reasonable rate is the right to the rate which the Commission files or fixes, and that, except for review of the Commission's orders, the courts can assume no right to a different one on the ground that, in its opinion, it is the only or the more reasonable one." 341 U.S., at 251-252, 71 S.Ct., at 695. Of course, in this case respondents are not invoking a federal right to receive a reasonable rate, but rather a state-law right to receive the rate for which they contracted. Similarly, the Louisiana Supreme Court's decision is not based on a determination that the rate requested by respondents is "the only or the more reasonable one," but rather on a determination that respondents are entitled to that rate under their contract with Arkla. 27 This distinction not only undercuts the Court's reliance on the filed rate doctrine, but also renders wholly inapposite our decision earlier this Term in Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 101 S.Ct. 1124, 67 L.Ed.2d 258, on which the Court relies heavily. See ante, at 580-582. The filed rate doctrine was not remotely implicated in that decision. Our holding in Kalo Brick that the Interstate Commerce Commission had decided the precise issues that the shipper sought to raise in state-court litigation is wholly dissimilar from this case in which the regulatory agency rejected the opportunity to decide the questions presented to the Louisiana courts. This is not merely an attempt by a disappointed litigant to gain from the state courts the relief it has been denied by the Commission. See ante, at 580. 28 As the Court noted, whenever a new rate is filed, "the Commission's only concern is with the reasonableness of the new rate." 350 U.S., at 340, 76 S.Ct., at 379 (emphasis in original). 29 This prohibition is founded not only on the law of contracts, but also on the Act itself: "Our conclusion that the Natural Gas Act does not empower natural gas companies unilaterally to change their contracts fully promotes the purposes of the Act. By preserving the integrity of contracts, it permits the stability of supply arrangements which all agree is essential to the health of the natural gas industry." Id., at 344, 76 S.Ct., at 380. 30 While there are differences between this case and United Gas, it seems to me that the cases are nonetheless closely analogous. In the present case, as in United Gas, one party to a duly filed contract attempted unilaterally to change the price at which natural gas would be sold under the contract. In United Gas, United did so directly by filing an increased rate with the Commission; in this case, the unilateral change was accomplished indirectly when Arkla prevented respondents from taking the steps necessary to recover the contractually authorized higher rate. Of course, in United Gas the lawful contract rate had actually been approved by the Commission, while in this case the contract rate claimed by respondents has never been filed. This distinction is not, however, of controlling significance. In United Gas, the Court was confronted with two rates, both presumptively reasonable, of which only one was lawful under the contract. In the present case we are confronted with essentially the same situation. While the rate ultimately awarded in United Gas had in fact been filed with the Commission, it was not the rate currently recognized by the Commission as "just and reasonable," because it had been replaced by the new rate filed by United. The Court nonetheless directed that Mobile pay only the old rate, which the Commission's order had purported to supersede. The lawful rate in United Gas is analogous to the contractually authorized rate in this case because it was presumptively reasonable, having received Commission approval, but was not the currently applicable filed rate for the gas sales at issue. In light of this fact, I can see no reason why respondents should be precluded from recovering from Arkla a presumptively reasonable rate, well below applicable Commission rate ceilings, merely because Arkla's own breach of contract prevented respondents from filing that rate with the Commission. 31 The Commission stated: "Finally, we confess that we are at least troubled by the prospect of speculating as to what the Commission would or would not have done in 1961 had it been confronted at that time with a rate increase filing by the Hall group. . . . Whether the Commission in 1961 would have provided a forum for resolving the contractual dispute is a question we cannot answer definitively. . . . At that time, the Commission might well have concluded that the favored nations clause was not triggered. More importantly, even if the Commission in 1961 had reached the same contractional interpretation as the Louisiana court, the Commission might have determined that the public interest would not permit the grant of rate increases based upon the triggering of favored nations clauses even in existing contracts." Arkansas Louisiana Gas Co. v. Hall, 13 FERC ¶ 61,100, p. 61,213 (1980). 32 The petition was filed on May 29, 1979. On October 1, 1979, the Court requested the views of the Solicitor General. A brief was filed by the Solicitor General on behalf of the United States and the Federal Energy Regulatory Commission on February 11, 1980, in which the amici took the position that the Louisiana Supreme Court had erred. The amici maintained that the error was sufficiently serious to warrant review, but recommended that the Court defer action until the Commission had acted on respondents' request for a waiver of the § 4(d) filing requirement. The Commission denied that request in its November 5 order, and shortly thereafter the amici recommended that certiorari be granted, and that the decision of the Louisiana Supreme Court be reversed. 33 On September 11, 1975, Arkla filed a petition with the Federal Power Commission requesting a declaratory order holding that the "favored nations" clause in its contract with respondents had not been triggered by the royalty payments made by Arkla to the United States. The Commission denied the petition, stating in part: "This case presents a question of concurrent jurisdiction, not primary or exclusive jurisdiction. The Commission has jurisdiction over rates, filing and notice as to both Arkla and Respondents. While this Commission has jurisdiction to decide the subject contract question, the Louisiana court also has jurisdiction over an action based upon asserted breach of contract. Accordingly, we believe it appropriate to defer to the court to decide these contract questions." 55 F.P.C., at 1020 (footnote omitted). On May 18, 1979, the Federal Energy Regulatory Commission re-examined this issue and came to the same conclusion, although for different reasons, in the order from which I have quoted in n. 14, supra. 34 After explaining its reasons for prohibiting indefinite escalation clauses in newly executed contracts, the Commission stated: "However, we are convinced that we cannot declare the escalation provisions in Pure's contracts with El Paso void or voidable, and thus in effect strike them from the contracts. There is no question but that these exceedingly material parts of the contracts were a basic part of the exchange between the parties in arriving at these agreements. Under familiar rules of law, if these material provisions are stricken, the contracts, which lack any provisions for the severability of parts found invalid, must also fall. This would result in legal and regulatory problems that might cause material harm to the public, harm that might well exceed the injurious effects of the escalation provisions themselves. For example, if these provisions were stricken and the contracts fell, the producer's sales might then presumably constitute ex parte offerings of gas and the producer could change its rates at will, unimpeded by any contractual limitations of the kind that presently exist. Thus, instead of being limited under the Mobile and related decisions only to increases permitted by contractual provisions, the company could file for increases whenever it happened to feel justified in doing so. Thus the uncertainty and spiraling prices resulting from the escalation clauses might well be compounded many times over." The Pure Oil Co., 25 F.P.C. 383, 388-389 (1961).

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453 U.S. 490 101 S.Ct. 2882 69 L.Ed.2d 800 METROMEDIA, INC., et al., Appellants,v.CITY OF SAN DIEGO et al. No. 80-195. Argued Feb. 25, 1981. Decided July 2, 1981. Syllabus Appellee city of San Diego enacted an ordinance which imposes substantial prohibitions on the erection of outdoor advertising displays within the city. The stated purpose of the ordinance is "to eliminate hazards to pedestrians and motorists brought about by distracting sign displays" and "to preserve and improve the appearance of the City." The ordinance permits onsite commercial advertising (a sign advertising goods or services available on the property where the sign is located), but forbids other commercial advertising and noncommercial advertising using fixed-structure signs, unless permitted by 1 of the ordinance's 12 specified exceptions, such as temporary political campaign signs. Appellants, companies that were engaged in the outdoor advertising business in the city when the ordinance was passed, brought suit in state court to enjoin enforcement of the ordinance. The trial court held that the ordinance was an unconstitutional exercise of the city's police power and an abridgment of appellants' First Amendment rights. The California Court of Appeal affirmed on the first ground alone, but the California Supreme Court reversed, holding, inter alia, that the ordinance was not facially invalid under the First Amendment. Held: The judgment is reversed, and the case is remanded. Pp. 498-521; 527-540. 26 Cal.3d 848, 164 Cal.Rptr. 510, 610 P.2d 407, reversed and remanded. Justice WHITE, joined by Justice STEWART, Justice MARSHALL, and Justice POWELL, concluded that the ordinance is unconstitutional on its face. Pp. 498-521. 1 (a) As with other media of communication, the government has legitimate interests in controlling the noncommunicative aspects of billboards, but the First and Fourteenth Amendments foreclose similar interests in controlling the communicative aspects of billboards. Because regulation of the noncommunicative aspects of a medium often impinges to some degree on the communicative aspects, the courts must reconcile the government's regulatory interests with the individual's right to expression. Pp. 500-503. 2 (b) Insofar as it regulates commercial speech, the ordinance meets the constitutional requirements of Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341. Improving traffic safety and the appearance of the city are substantial governmental goals. The ordinance directly serves these goals and is no broader than necessary to accomplish such ends. Pp. 503-512. 3 (c) However, the city's general ban on signs carrying noncommercial advertising is invalid under the First and Fourteenth Amendments. The fact that the city may value commercial messages relating to onsite goods and services more than it values commercial communications relating to offsite goods and services does not justify prohibiting an occupant from displaying his own ideas or those of others. Furthermore, because under the ordinance's specified exceptions some noncommercial messages may be conveyed on billboards throughout the commercial and industrial zones, the city must allow billboards conveying other noncommercial messages throughout those zones. The ordinance cannot be characterized as a reasonable "time, place, and manner" restriction. Pp. 512-517. 4 (d) Government restrictions on protected speech are not permissible merely because the government does not favor one side over another on a subject of public controversy. Nor can a prohibition of all messages carried by a particular mode of communication be upheld merely because the prohibition is rationally related to a nonspeech interest. Courts must protect First Amendment interests against legislative intrusion, rather than defer to merely rational legislative judgments in this area. Since the city has concluded that its official interests are not as strong as private interests in onsite commercial advertising, it may not claim that those same official interests outweigh private interests in noncommercial communications. Pp. 517-521. 5 Justice BRENNAN, joined by Justice BLACKMUN, concluded that in practical effect the city's ordinance constitutes a total ban on the use of billboards to communicate to the public messages of general applicability, whether commercial or noncommercial, and that under the appropriate First Amendment analysis a city may totally ban billboards only if it can show that a sufficiently substantial governmental interest is directly furthered thereby and that any more narrowly drawn restriction would promote less well the achievement of that goal. Under this test, San Diego's ordinance is invalid since (1) the city failed to produce evidence demonstrating that billboards actually impair traffic safety in San Diego, (2) the ordinance is not narrowly drawn to accomplish the traffic safety goal, and (3) the city failed to show that its asserted interest in esthetics was sufficiently substantial in its commercial and industrial areas. Nor would an ordinance totally banning commercial billboards but allowing noncommercial billboards be constitutional, since it would give city officials the discretion to determine in the first instance whether a proposed message is "commercial" or "noncommercial." Pp. 527-540. 6 Floyd Abrams, New York City, for appellants. 7 C. Alan Sumption, San Diego, Cal., for appellees. 8 Justice WHITE announced the judgment of the Court and delivered an opinion, in which Justice STEWART, Justice MARSHALL, and Justice POWELL joined. 9 This case involves the validity of an ordinance of the city of San Diego, Cal., imposing substantial prohibitions on the erection of outdoor advertising displays within the city. 10 * Stating that its purpose was "to eliminate hazards to pedestrians and motorists brought about by distracting sign displays" and "to preserve and improve the appearance of the City," San Diego enacted an ordinance to prohibit "outdoor advertising display signs."1 The California Supreme Court subsequently defined the term "advertising display sign" as "a rigidly assembled sign, display, or device permanently affixed to the ground or permanently attached to a building or other inherently permanent structure constituting, or used for the display of, a commercial or other advertisement to the public." 26 Cal.3d 848, 856, n. 2, 164 Cal.Rptr. 510, 513, n. 2, 610 P. 2d, 410, n. 2 (1980). "Advertising display signs" include any sign that "directs attention to a product, service or activity, event, person, institution or business."2 11 The ordinance provides two kinds of exceptions to the general prohibition: onsite signs and signs falling within 12 specified categories. Onsite signs are defined as those 12 "designating the name of the owner or occupant of the premises upon which such signs are placed, or identifying such premises; or signs advertising goods manufactured or produced or services rendered on the premises upon which such signs are placed." 13 The specific categories exempted from the prohibition include: government signs; signs located at public bus stops; signs manufactured, transported, or stored within the city, if not used for advertising purposes; commemorative historical plaques; religious symbols; signs within shopping malls; for sale and for lease signs; signs on public and commercial vehicles; signs depicting time, temperature, and news; approved temporary, off-premises, subdivision directional signs; and "[t]emporary political campaign signs."3 Under this scheme, on-site commercial advertising is permitted, but other commercial advertising and noncommercial communications using fixed-structure signs are everywhere forbidden unless permitted by one of the specified exceptions. 14 Appellants are companies that were engaged in the outdoor advertising business in San Diego at the time the ordinance was passed. Each owns a substantial number of outdoor advertising displays (approximately 500 to 800) within the city. These signs are all located in areas zoned for commercial and industrial purposes, most of them on property leased by the owners to appellants for the purpose of maintaining billboards. Each sign has a remaining useful income-producing life of over 25 years, and each sign has a fair market value of between $2,500 and $25,000. Space on the signs was made available to "all comers" and the copy on each sign changed regularly, usually monthly.4 The nature of the outdoor advertising business was described by the parties as follows: 15 "Outdoor advertising is customarily purchased on the basis of a presentation or campaign requiring multiple exposure. Usually a large number of signs in a variety of locations are utilized to communicate a particular advertiser's message. An advertiser will generally purchase a 'showing' which would involve the utilization of a specific number of signs advertising the same message in a variety of locations throughout a metropolitan area."5 16 Although the purchasers of advertising space on appellants' signs usually seek to convey a commercial message, their billboards have also been used to convey a broad range of noncommercial political and social messages. 17 Appellants brought suit in state court to enjoin enforcement of the ordinance. After extensive discovery, the parties filed a stipulation of facts, including: 18 "2. If enforced as written, Ordinance No. 10795 will eliminate the outdoor advertising business in the City of San Diego. 19 * * * * * 20 "28. Outdoor advertising increases the sales of products and produces numerous direct and indirect benefits to the public. Valuable commercial, political and social information is communicated to the public through the use of outdoor advertising. Many businesses and politicians and other persons rely upon outdoor advertising because other forms of advertising are insufficient, inappropriate and prohibitively expensive." Joint Stipulation of Facts Nos. 2, 28, App. 42a, 48a. 21 On cross-motions for summary judgment, the trial court held that the ordinance was an unconstitutional exercise of the city's police power and an abridgment of appellants' First Amendment rights. The California Court of Appeal affirmed on the first ground alone and did not reach the First Amendment argument. Without questioning any of the stipulated facts, including the fact that enforcement of the ordinance would "eliminate the outdoor advertising business in the City of San Diego," the California Supreme Court reversed. It held that the two purposes of the ordinance were within the city's legitimate interests and that the ordinance was "a proper application of municipal authority over zoning and land use for the purpose of promoting the public safety and welfare." 26 Cal.3d, at 858, 164 Cal.Rptr., at 514, 610 P.2d, at 411 (footnote omitted). The court rejected appellants' argument that the ordinance was facially invalid under the First Amendment. It relied on certain summary actions of this Court, dismissing for want of a substantial federal question appeals from several state-court decisions sustaining governmental restrictions on outdoor sign displays.6 Appellants sought review in this Court, arguing that the ordinance was facially invalid on First Amendment grounds and that the city's threatened destruction of the outdoor advertising business was prohibited by the Due Process Clause of the Fourteenth Amendment. We noted probable jurisdiction. 449 U.S. 897, 101 S.Ct. 265, 66 L.Ed.2d 127. II 22 Early cases in this Court sustaining regulation of and prohibitions aimed at billboards did not involve First Amendment considerations. See Packer Corp. v. Utah, 285 U.S. 105, 52 S.Ct. 273, 76 L.Ed. 643 (1932); St. Louis Poster Advertising Co. v. St. Louis, 249 U.S. 269, 39 S.Ct. 274, 63 L.Ed. 599 (1919); Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 37 S.Ct. 190, 61 L.Ed. 472 (1917).7 Since those decisions, we have not given plenary consideration to cases involving First Amendment challenges to statutes or ordinances limiting the use of billboards, preferring on several occasions summarily to affirm decisions sustaining state or local legislation directed at billboards. 23 Suffolk Outdoor Advertising Co. v. Hulse, 439 U.S. 808, 99 S.Ct. 66, 58 L.Ed.2d 101 (1978), involved a municipal ordinance that distinguished between offsite and onsite billboard advertising, prohibiting the former and permitting the latter. We summarily dismissed as not presenting a substantial federal question an appeal from a judgment sustaining the ordinance, thereby rejecting the submission, repeated in this case, that prohibiting offsite commercial advertising violates the First Amendment. The definition of "billboard," however, was considerably narrower in Suffolk than it is here: "A sign which directs attention to a business, commodity, service, entertainment, or attraction sold, offered or existing elsewhere than upon the same lot where such sign is displayed." This definition did not sweep within its scope the broad range of noncommercial speech admittedly prohibited by the San Diego ordinance. Furthermore, the Southampton, N.Y., ordinance, unlike that in San Diego, contained a provision permitting the establishment of public information centers in which approved directional signs for businesses could be located. This Court has repeatedly stated that although summary dispositions are decisions on the merits, the decisions extend only to "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 (1977); see also Hicks v. Miranda, 422 U.S. 332, 345, n. 14, 95 S.Ct. 2281, 2290, 45 L.Ed.2d 223 (1975); Edelman v. Jordan, 415 U.S. 651, 671, 94 S.Ct. 1347, 1359, 39 L.Ed.2d 662 (1974). Insofar as the San Diego ordinance is challenged on the ground that it prohibits noncommercial speech, the Suffolk case does not directly support the decision below. 24 The Court has summarily disposed of appeals from state-court decisions upholding state restrictions on billboards on several other occasions. Markham Advertising Co. v. Washington, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 512 (1969), and Newman Signs, Inc. v. Hjelle, 440 U.S. 901, 99 S.Ct. 1205, 59 L.Ed.2d 449 (1979), both involved the facial validity of state billboard prohibitions that extended only to certain designated roadways or to areas zoned for certain uses. The statutes in both instances distinguished between onsite commercial billboards and offsite billboards within the protected areas. Our most recent summary action was Lotze v. Washington, 444 U.S. 921, 100 S.Ct. 257, 62 L.Ed.2d 177 (1979), which involved an "as applied" challenge to a Washington prohibition on offsite signs. In that case, appellants erected, on their own property, billboards expressing their political and social views. Although billboards conveying information relating to the commercial use of the property would have been permitted, appellants' billboards were prohibited, and the state courts ordered their removal. We dismissed as not raising a substantial federal question an appeal from a judgment rejecting the First Amendment challenge to the statute. 25 Insofar as our holdings were pertinent, the California Supreme Court was quite right in relying on our summary decisions as authority for sustaining the San Diego ordinance against First Amendment attack. Hicks v. Miranda, supra. As we have pointed out, however, summary actions do not have the same authority in this Court as do decisions rendered after plenary consideration, Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 180-181, 99 S.Ct. 983, 988-989, 59 L.Ed.2d 230 (1979); Edelman v. Jordan, supra, 415 U.S. at 671, 94 S.Ct. at 1359; see also Fusari v. Steinberg, 419 U.S. 379, 392, 95 S.Ct. 533, 541, 42 L.Ed.2d 521 (1975) (BURGER, C. J., concurring). They do not present the same justification for declining to reconsider a prior decision as do decisions rendered after argument and with full opinion. "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." Washington v. Yakima Indian Nation, 439 U.S. 463, 477, n. 20, 99 S.Ct. 740, 749, n. 20, 58 L.Ed.2d 740 (1979); see also Tully v. Griffin, Inc., 429 U.S. 68, 74-75, 97 S.Ct. 219, 223-224, 50 L.Ed.2d 227 (1976); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 14, 96 S.Ct. 2882, 2891, 49 L.Ed.2d 752 (1976). Probable jurisdiction having been noted to consider the constitutionality of the San Diego ordinance, we proceed to do so. III 26 This Court has often faced the problem of applying the broad principles of the First Amendment to unique forums of expression. See, e. g., Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980) (billing envelope inserts); Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) (picketing in residential areas); Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980) (door-to-door and on-street solicitation); Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976) (Army bases); Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) (outdoor movie theaters); Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974) (advertising space within city-owned transit system). Even a cursory reading of these opinions reveals that at times First Amendment values must yield to other societal interests. These cases support the cogency of Justice Jackson's remark in Kovacs v. Cooper, 336 U.S. 77, 97, 69 S.Ct. 448, 458, 93 L.Ed. 513 (1949): Each method of communicating ideas is "a law unto itself" and that law must reflect the "differing natures, values, abuses and dangers" of each method.8 We deal here with the law of billboards. 27 Billboards are a well-established medium of communication, used to convey a broad range of different kinds of messages.9 As Justice Clark noted in his dissent below: 28 "The outdoor sign or symbol is a venerable medium for expressing political, social and commercial ideas. From the poster or 'broadside' to the billboard, outdoor signs have placed a prominent role throughout American history, rallying support for political and social causes." 26 Cal.3d, at 888, 164 Cal.Rptr., at 533-534, 610 P.2d, at 430-431. 29 The record in this case indicates that besides the typical commercial uses, San Diego billboards have been used 30 "to publicize the 'City in motion' campaign of the City of San Diego, to communicate messages from candidates for municipal, state and national offices, including candidates for judicial office, to propose marriage, to seek employment, to encourage the use of seat belts, to denounce the United Nations, to seek support for Prisoners of War and Missing in Action, to promote the United Crusade and a variety of other charitable and socially-related endeavors and to provide directions to the traveling public."10 31 But whatever its communicative function, the billboard remains a "large, immobile, and permanent structure which like other structures is subject to . . . regulation." Id., at 870, 164 Cal.Rptr., at 522, 610 P.2d, at 419. Moreover, because it is designed to stand out and apart from its surroundings, the billboard creates a unique set of problems for land-use planning and development. 32 Billboards, then, like other media of communication, combine communicative and noncommunicative aspects. As with other media, the government has legitimate interests in controlling the noncommunicative aspects of the medium, Kovacs v. Cooper, supra, but the First and Fourteenth Amendments foreclose a similar interest in controlling the communicative aspects. Because regulation of the noncommunicative aspects of a medium often impinges to some degree on the communicative aspects, it has been necessary for the courts to reconcile the government's regulatory interests with the individual's right to expression. " '[A] court may not escape the task of assessing the First Amendment interest at stake and weighing it against the public interest allegedly served by the regulation.' " Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 91, 97 S.Ct. 1614, 1617, 52 L.Ed.2d 155 (1977), quoting Bigelow v. Virginia, 421 U.S. 809, 826, 95 S.Ct. 2222, 2234, 44 L.Ed.2d 600 (1975). Performance of this task requires a particularized inquiry into the nature of the conflicting interests at stake here, beginning with a precise appraisal of the character of the ordinance as it affects communication. 33 As construed by the California Supreme Court, the ordinance restricts the use of certain kinds of outdoor signs. That restriction is defined in two ways: first, by reference to the structural characteristics of the sign; second, by reference to the content, or message, of the sign. Thus, the regulation only applies to a "permanent structure constituting, or used for the display of, a commercial or other advertisement to the public." 26 Cal.3d, at 856, n. 2, 164 Cal.Rptr., at 513, n. 2, 610 P.2d, at 410, n. 2. Within that class, the only permitted signs are those (1) identifying the premises on which the sign is located, or its owner or occupant, or advertising the goods produced or services rendered on such property and (2) those within one of the specified exemptions to the general prohibition, such as temporary political campaign signs. To determine if any billboard is prohibited by the ordinance, one must determine how it is constructed, where it is located, and what message it carries. 34 Thus, under the ordinance (1) a sign advertising goods or services available on the property where the sign is located is allowed; (2) a sign on a building or other property advertising goods or services produced or offered elsewhere is barred; (3) noncommercial advertising, unless within one of the specific exceptions, is everywhere prohibited. The occupant of property may advertise his own goods or services; he may not advertise the goods or services of others, nor may he display most noncommercial messages. IV 35 Appellants' principal submission is that enforcement of the ordinance will eliminate the outdoor advertising business in San Diego and that the First and Fourteenth Amendments prohibit the elimination of this medium of communication. Appellants contend that the city may bar neither all offsite commercial signs nor all noncommercial advertisements and that even if it may bar the former, it may not bar the latter. Appellants may raise both arguments in their own right because, although the bulk of their business consists of offsite signs carrying commercial advertisements, their billboards also convey a substantial amount of noncommercial advertising.11 Because our cases have consistently distinguished between the constitutional protection afforded commercial as opposed to noncommercial speech, in evaluating appellants' contention we consider separately the effect of the ordinance on commercial and noncommercial speech. 36 The extension of First Amendment protections to purely commercial speech is a relatively recent development in First Amendment jurisprudence. Prior to 1975, purely commercial advertisements of services or goods for sale were considered to be outside the protection of the First Amendment. Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942). That construction of the First Amendment was severely cut back in Bigelow v. Virginia, supra. In Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), we plainly held that speech proposing no more than a commercial transaction enjoys a substantial degree of First Amendment protection: A State may not completely suppress the dissemination of truthful information about an entirely lawful activity merely because it is fearful of that information's effect upon its disseminators and its recipients. That decision, however, did not equate commercial and noncommercial speech for First Amendment purposes; indeed, it expressly indicated the contrary. See id., at 770-773, and n. 24, 96 S.Ct., at 1830-1831. See also id., at 779-781, 96 S.Ct., at 1834-1835 (STEWART, J., concurring).12 37 Although the protection extended to commercial speech has continued to develop, commercial and noncommercial communications, in the context of the First Amendment, have been treated differently. Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), held that advertising by attorneys may not be subjected to blanket suppression and that the specific advertisement at issue there was constitutionally protected. However, we continue to observe the distinction between commercial and noncommercial speech, indicating that the former could be forbidden and regulated in situations where the latter could not be. Id., at 379-381, 383-384, 97 S.Ct., at 2706-2708, 2708-2709. In Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978), the Court refused to invalidate on First Amendment grounds a lawyer's suspension from practice for face-to-face solicitation of business for pecuniary gain. In the course of doing so, we again recognized the common-sense and legal distinction between speech proposing a commercial transaction and other varieties of speech: 38 "To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment's guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, we instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression." Id., at 456, 98 S.Ct., at 1918. 39 In Young v. American Mini Theatres, Inc., 427 U.S. 50, 69, n. 32, 96 S.Ct. 2440, 2452, 49 L.Ed.2d 310 (1976), Justice STEVENS stated that the difference between commercial price and product advertising and ideological communication permits regulation of the former "that the First Amendment would not tolerate with respect to the latter." See also Linmark Associates, Inc. v. Willingboro, 431 U.S., at 91-92, 97 S.Ct., at 1617-1618, and Friedman v. Rogers, 440 U.S. 1, 8-10, 99 S.Ct. 887, 893, 59 L.Ed.2d 100 (1979). 40 Finally, in Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), we held: "The Constitution . . . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. The protection available for a particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation." Id., at 562-563, 100 S.Ct., at 2349-2350 (citation omitted). We then adopted a four-part test for determinating the validity of government restrictions on commercial speech as distinguished from more fully protected speech. (1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it (2) seeks to implement a substantial governmental interest, (3) directly advances that interest, and (4) reaches no further than necessary to accomplish the given objective. Id., at 563-566, 100 S.Ct., at 2350-2351. 41 Appellants agree that the proper approach to be taken in determining the validity of the restrictions on commercial speech is that which was articulated in Central Hudson, but assert that the San Diego ordinance fails that test. We do not agree. 42 There can be little controversy over the application of the first, second, and fourth criteria. There is no suggestion that the commercial advertising at issue here involves unlawful activity or is misleading. Nor can there be substantial doubt that the twin goals that the ordinance seeks to further—traffic safety and the appearance of the city—are substantial governmental goals.13 It is far too late to contend otherwise with respect to either traffic safety, Railway Express Agency, Inc. v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949), or esthetics, see Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Village of Belle Terre v. Boraas, 416 U.S. 1, 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). Similarly, we reject appellants' claim that the ordinance is broader than necessary and, therefore, fails the fourth part of the Central Hudson test. If the city has a sufficient basis for believing that billboards are traffic hazards and are unattractive, then obviously the most direct and perhaps the only effective approach to solving the problems they create is to prohibit them. The city has gone no further than necessary in seeking to meet its ends. Indeed, it has stopped short of fully accomplishing its ends: It has not prohibited all billboards, but allows onsite advertising and some other specifically exempted signs. 43 The more serious question, then, concerns the third of the Central Hudson criteria: Does the ordinance "directly advance" governmental interests in traffic safety and in the appearance of the city? It is asserted that the record is inadequate to show any connection between billboards and traffic safety. The California Supreme Court noted the meager record on this point but held "as a matter of law that an ordinance which eliminates billboards designed to be viewed from streets and highways reasonably relates to traffic safety." 26 Cal.3d, at 859, 164 Cal.Rptr., at 515, 610 P.2d, at 412. Noting that "[b]illboards are intended to, and undoubtedly do, divert a driver's attention from the roadway," ibid., and that whether the "distracting effect contributes to traffic accidents invokes an issue of continuing controversy," ibid., the California Supreme Court agreed with many other courts that a legislative judgment that billboards are traffic hazards is not manifestly unreasonable and should not be set aside. We likewise hesitate to disagree with the accumulated, common-sense judgments of local lawmakers and of the many reviewing courts that billboards are real and substantial hazards to traffic safety.14 There is nothing here to suggest that these judgments are unreasonable. As we said in a different context, Railway Express Agency, Inc. v. New York, supra, at 109, 69 S.Ct., at 465: 44 "We would be trespassing on one of the most intensely local and specialized of all municipal problems if we held that this regulation had no relation to the traffic problem of New York City. It is the judgment of the local authorities that it does have such a relation. And nothing has been advanced which shows that to be palpably false." We reach a similar result with respect to the second asserted justification for the ordinance—advancement of the city's esthetic interests. It is not speculative to recognize that billboards by their very nature, wherever located and however constructed, can be perceived as an "esthetic harm."15 San Diego, like many States and other municipalities, has chosen to minimize the presence of such structures.16 Such esthetic judgments are necessarily subjective, defying objective evaluation, and for that reason must be carefully scrutinized to determine if they are only a public rationalization of an impermissible purpose. But there is no claim in this case that San Diego has as an ulterior motive the suppression of speech, and the judgment involved here is not so unusual as to raise suspicions in itself. 45 It is nevertheless argued that the city denigrates its interest in traffic safety and beauty and defeats its own case by permitting onsite advertising and other specified signs. Appellants question whether the distinction between onsite and offsite advertising on the same property is justifiable in terms of either esthetics or traffic safety. The ordinance permits the occupant of property to use billboards located on that property to advertise goods and services offered at that location; identical billboards, equally distracting and unattractive, that advertise goods or services available elsewhere are prohibited even if permitting the latter would not multiply the number of billboards. Despite the apparent incongruity, this argument has been rejected, at least implicitly, in all of the cases sustaining the distinction between offsite and onsite commercial advertising.17 We agree with those cases and with our own decisions in Suffolk Outdoor Advertising Co. v. Hulse, 439 U.S. 808, 99 S.Ct. 66, 58 L.Ed.2d 101 (1978); Markham Advertising Co. v. Washington, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 512 (1969); and Newman Signs, Inc. v. Hjelle, 440 U.S. 901, 99 S.Ct. 1205, 59 L.Ed.2d 449 (1979). 46 In the first place, whether onsite advertising is permitted or not, the prohibition of offsite advertising is directly related to the stated objectives of traffic safety and esthetics. This is not altered by the fact that the ordinance is underinclusive because it permits onsite advertising. Second, the city may believe that offsite advertising, with is periodically changing content, presents a more acute problem than does onsite advertising. See Railway Express, 336 U.S., at 110, 69 S.Ct., at 465. Third, San Diego has obviously chosen to value one kind of commercial speech—onsite advertising—more than another kind of commercial speech—offsite advertising. The ordinance reflects a decision by the city that the former interest, but not the latter, is stronger than the city's interests in traffic safety and esthetics. The city has decided that in a limited instance—onsite commercial advertising—its interests should yield. We do not reject that judgment. As we see it, the city could reasonably conclude that a commercial enterprise—as well as the interested public—has a stronger interest in identifying its place of business and advertising the products or services available there than it has in using or leasing its available space for the purpose of advertising commercial enterprises located elsewhere. See Railway Express, supra, at 116, 69 S.Ct., at 468 (JACKSON, J., concurring); Bradley v. Public Utilities Comm'n, 289 U.S. 92, 97, 53 S.Ct. 577, 579, 77 L.Ed. 1053 (1933). It does not follow from the fact that the city has concluded that some commercial interests outweigh its municipal interests in this context that it must give similar weight to all other commercial advertising. Thus, offsite commercial billboards may be prohibited while onsite commercial billboards are permitted. 47 The constitutional problem in this area requires resolution of the conflict between the city's land-use interests and the commercial interests of those seeking to purvey goods and services within the city. In light of the above analysis, we cannot conclude that the city has drawn an ordinance broader than is necessary to meet its interests, or that it fails directly to advance substantial government interests. In sum, insofar as it regulates commercial speech the San Diego ordinance meets the constitutional requirements of Central Hudson, supra. V 48 It does not follow, however, that San Diego's general ban on signs carrying noncommercial advertising is also valid under the First and Fourteenth Amendments. The fact that the city may value commercial messages relating to onsite goods and services more than it values commercial communications relating to offsite goods and services does not justify prohibiting an occupant from displaying its own ideas or those of others. 49 As indicated above, our recent commercial speech cases have consistently accorded noncommercial speech a greater degree of protection than commercial speech. San Diego effectively inverts this judgment, by affording a greater degree of protection to commercial than to noncommercial speech. There is a broad exception for onsite commercial advertisements, but there is no similar exception for noncommercial speech. The use of onsite billboards to carry commercial messages related to the commercial use of the premises is freely permitted, but the use of otherwise identical billboards to carry noncommercial messages is generally prohibited. The city does not explain how or why noncommercial billboards located in places where commercial billboards are permitted would be more threatening to safe driving or would detract more from the beauty of the city. Insofar as the city tolerates billboards at all, it cannot choose to limit their content to commercial messages; the city may not conclude that the communication of commercial information concerning goods and services connected with a particular site is of greater value than the communication of noncommercial messages.18 50 Furthermore, the ordinance contains exceptions that permit various kinds of noncommercial signs, whether on property where goods and services are offered or not, that would otherwise be within the general ban. A fixed sign may be used to identify any piece of property and its owner. Any piece of property may carry or display religious symbols, commemorative plaques of recognized historical societies and organizations, signs carrying news items or telling the time or temperature, signs erected in discharge of any governmental function, or temporary political campaign signs.19 No other noncommercial or ideological signs meeting the structural definition are permitted, regardless of their effect on traffic safety or esthetics. 51 Although the city may distinguish between the relative value of different categories of commercial speech, the city does not have the same range of choice in the area of noncommercial speech to evaluate the strength of, or distinguish between, various communicative interests. See Carey v. Brown, 447 U.S., at 462, 100 S.Ct., at 2291; Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972). With respect to noncommercial speech, the city may not choose the appropriate subjects for public discourse: "To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth." Consolidated Edison Co., 447 U.S., at 538, 100 S.Ct., at 2333. Because some noncommercial messages may be conveyed on billboards throughout the commercial and industrial zones, San Diego must similarly allow billboards conveying other noncommercial messages throughout those zones.20 52 Finally, we reject appellees' suggestion that the ordinance may be appropriately characterized as a reasonable "time, place, and manner" restriction. The ordinance does not generally ban billboard advertising as an unacceptable "manner" of communicating information or ideas; rather, it permits various kinds of signs. Signs that are banned are banned everywhere and at all times. We have observed that time, place, and manner restrictions are permissible if "they are justified without reference to the content of the regulated speech, . . . serve a significant governmental interest, and . . . leave open ample alternative channels for communication of the information." Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S., at 771, 96 S.Ct., at 1830. Here, it cannot be assumed that "alternative channels" are available, for the parties stipulated to just the opposite: "Many businesses and politicians and other persons rely upon outdoor advertising because other forms of advertising are insufficient, inappropriate and prohibitively expensive."21 A similar argument was made with respect to a prohibition on real estate "For Sale" signs in Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977), and what we said there is equally applicable here: 53 "Although in theory sellers remain free to employ a number of different alternatives, in practice [certain products are] not marketed through leaflets, sound trucks, demonstrations, or the like. The options to which sellers realistically are relegated . . . involved more cost and less autonomy than . . . signs[,] . . . are less likely to reach persons not deliberately seeking sales information[,] . . . and may be less effective media for communicating the message that is conveyed by a . . . sign. . . . The alternatives, then, are far from satisfactory." Id., at 93, 97 S.Ct., at 1618. 54 It is apparent as well that the ordinance distinguishes in several ways between permissible and impermissible signs at a particular location by reference to their content. Whether or not these distinctions are themselves constitutional, they take the regulation out of the domain of time, place, and manner restrictions. See Consolidated Edison Co. v. Public Service Comm'n, supra. VI 55 Despite the rhetorical hyperbole of THE CHIEF JUSTICE's dissent, there is a considerable amount of common ground between the approach taken in this opinion and that suggested by his dissent. Both recognize that each medium of communication creates a unique set of First Amendment problems, both recognize that the city has a legitimate interest in regulating the noncommunicative aspects of a medium of expression, and both recognize that the proper judicial role is to conduct " 'a careful inquiry into the competing concerns of the State and the interests protected by the guarantee of free expression.' " Post, at 556. Our principal difference with his dissent is that it gives so little weight to the latter half of this inquiry.22 The Chief Justice writes that 56 "[a]lthough we must ensure that any regulation of speech 'further[s] a sufficiently substantial government interest' . . . given a reasonable approach to a perceived problem, this Court's duty . . . is to determine whether the legislative approach is essentially neutral to the messages conveyed and leaves open other adequate means of conveying those messages." Post, at 561.23 57 Despite his belief that this is "the essence of . . . democracy," this has never been the approach of this Court when a legislative judgment is challenged as an unconstitutional infringement of First Amendment rights.24 58 By "essentially neutral," THE CHIEF JUSTICE may mean either or both of two things. He may mean that government restrictions on protected speech are permissible so long as the government does not favor one side over another on a subject of public controversy. This concept of neutrality was specifically rejected by the Court last Term in Consolidated Edison Co. v. Public Service Comm'n, 447 U.S., at 537, 100 S.Ct., at 2333. There, the Court dismissed the Commission's contention that a prohibition of all discussion, regardless of the viewpoint expressed, on controversial issues of public policy does not unconstitutionally suppress freedom of speech. "The First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic." Ibid. On the other hand, THE CHIEF JUSTICE may mean by neutrality that government restrictions on speech cannot favor certain communicative contents over others. As a general rule, this, of course, is correct, see, e. g., Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980). The general rule, in fact, is applicable to the facts of this case: San Diego has chosen to favor certain kinds of messages—such as onsite commercial advertising, and temporary political campaign advertisements—over others. Except to imply that the favored categories are for some reason de minimis in a constitutional sense, his dissent fails to explain why San Diego should not be held to have violated this concept of First Amendment neutrality. 59 Taken literally THE CHIEF JUSTICE's approach would require reversal of the many cases striking down antisolicitation statutes on First Amendment grounds: In each of them the city would argue that preventing distribution of leaflets rationally furthered the city's interest in limiting litter, applied to all kinds of leaflets and hence did not violate the principle of government neutrality, and left open alternative means of communication. See, e. g., Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943); Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939). Despite the dissent's assertion to the contrary, however, it has been this Court's consistent position that democracy stands on a stronger footing when courts protect First Amendment interests against legislative intrusion, rather than deferring to merely rational legislative judgments in this area: 60 "Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions. And so, as cases arise, the delicate and difficult task falls upon the courts to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights." Id., at 161, 60 S.Ct., at 151. 61 Because THE CHIEF JUSTICE misconceives the nature of the judicial function in this situation, he misunderstands the significance of the city's extensive exceptions to its billboard prohibition. He characterizes these exceptions as "essentially negligible," post, at 562, and then opines that it borders on the frivolous to suggest that in "allowing such signs but forbidding noncommercial billboards, the city has infringed freedom of speech." Post, at 565. That, of course, is not the nature of this argument. 62 There can be no question that a prohibition on the erection of billboards infringes freedom of speech: The exceptions do not create the infringement, rather the general prohibition does. But the exceptions to the general prohibition are of great significance in assessing the strength of the city's interest in prohibiting billboards. We conclude that by allowing commercial establishments to use billboards to advertise the products and services they offer, the city necessarily has conceded that some communicative interests, e. g., onsite commercial advertising, are stronger than its competing interests in esthetics and traffic safety. It has nevertheless banned all noncommercial signs except those specifically excepted. 63 THE CHIEF JUSTICE agrees that in allowing the exceptions to the rule the city has balanced the competing interests, but he argues that we transgress the judicial role by independently reviewing the relative values the city has assigned to various communicative interests. He seems to argue that although the Constitution affords a greater degree of protection to noncommercial than to commercial speech, a legislature need not make the same choices. Post, at 567. This position makes little sense even abstractly, and it surely is not consistent with our cases or with THE CHIEF JUSTICE's own argument that statutes challenged on First Amendment grounds must be evaluated in light of the unique facts and circumstances of the case. Governmental interests are only revealed and given concrete force by the steps taken to meet those interests. If the city has concluded that its official interests are not as strong as private interests in commercial communications, may it nevertheless claim that those same official interests outweigh private interests in noncommercial communications? Our answer, which is consistent with our cases, is in the negative. VII 64 Because the San Diego ordinance reaches too far into the realm of protected speech, we conclude that it is unconstitutional on its face.25 The judgment of the California Supreme Court is reversed, and the case is remanded to that court.26 65 It is so ordered. 66 Justice BRENNAN, with whom Justice BLACKMUN joins, concurring in the judgment. 67 Believing that "a total prohibition of outdoor advertising is not before us," ante, at 515, n. 20, the plurality does not decide "whether such a ban would be consistent with the First Amendment," ibid. Instead, it concludes that San Diego may ban all billboards containing commercial speech messages without violating the First Amendment, thereby sending the signal to municipalities that bifurcated billboard regulations prohibiting commercial messages but allowing noncommercial messages would pass constitutional muster. Ante, at 521, n. 25. I write separately because I believe this case in effect presents the total ban question, and because I believe the plurality's bifurcated approach itself raises serious First Amendment problems and relies on a distinction between commercial and noncommercial speech unanticipated by our prior cases. 68 * As construed by the California Supreme Court, a billboard subject to San Diego's regulation is "a rigidly assembled sign, display, or device permanently affixed to the ground or permanently attached to a building or other inherently permanent structure constituting, or used for the display of, a commercial or other advertisement to the public." 26 Cal.3d 848, 856, n. 2, 164 Cal.Rptr. 510, 513, 610 P.2d 407, 410, n. 2 (1980), quoting Cal.Rev. & Tex.Code Ann. § 18090.2 (West Supp.1970-1980).1 San Diego's billboard regulation bans all commercial and noncommercial billboard advertising2 with a few limited exceptions. The largest of these exceptions is for on-premises identification signs, defined as 69 "signs designating the name of the owner or occupant of the premises upon which such signs are placed, or identifying such premises; or signs advertising goods manufactured or produced or services rendered on the premises upon which such signs are placed." App. to Juris. Statement 107a. 70 Other exceptions permit signs for governmental functions, signs on benches at bus stops, commemorative plaques for historical sites, religious symbol signs, for sale signs, time/weather/news public service signs, and temporary political campaign signs erected for no longer than 90 days and removed within 10 days after the election to which they pertain. Id., at 111a-112a; ante, at 495, n. 3.3 II 71 Let me first state the common ground that I share with the plurality. The plurality and I agree that billboards are a medium of communication warranting First Amendment protection. The plurality observes that "[b]illboards are a well-established medium of communication, used to convey a broad range of different kinds of messages." Ante, at 501. See generally Tocker, Standardized Outdoor Advertising: History, Economics and Self-Regulation, in Outdoor Advertising: History and Regulation 11, 11-56 (J. Houck ed. 1969); F. Presbrey, The History and Development of Advertising 497-511 (1929). As the parties have stipulated, billboards in San Diego have been used 72 "to advertise national and local products, goods and services, new products being introduced to the consuming public, to publicize the 'City in Motion' campaign of the City of San Diego, to communicate messages from candidates for municipal, state and national offices, including candidates for judicial office, to propose marriage, to seek employment, to encourage the use of seat belts, to denounce the United Nations, to seek support for Prisoners of War and Missing in Action, to promote the United Crusade and a variety of other charitable and socially-related endeavors and to provide directions to the traveling public." Joint Stipulation of Facts No. 23, App. 46a-47a.4 73 Although there are alternative channels for communication of messages appearing on billboards, such as newspapers, television, and radio, these alternatives have never dissuaded active and continued use of billboards as a medium of expression and appear to be less satisfactory. See Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 93, 97 S.Ct. 1614, 1618, 52 L.Ed.2d 155 (1977). Indeed the parties expressly stipulated that "[m]any businesses and politicians and other persons rely upon outdoor advertising because other forms of advertising are insufficient, inappropriate and prohibitively expensive." Joint Stipulation of Facts No. 28, App. 48a. Justice Black said it well when he stated the First Amendment's presumption that "all present instruments of communication, as well as others that inventive genius may bring into being, shall be free from governmental censorship or prohibition." Kovacs v. Cooper, 336 U.S. 77, 102, 69 S.Ct. 448, 461, 93 L.Ed. 513 (1949) (dissenting opinion). 74 Where the plurality and I disagree is in the characterization of the San Diego ordinance and thus in the appropriate analytical framework to apply. The plurality believes that the question of a total ban is not presented in this case, ante, at 515, n. 20, because the ordinance contains exceptions to its general prohibition. In contrast, my view is that the practical effect of the San Diego ordinance is to eliminate the billboard as an effective medium of communication for the speaker who wants to express the sorts of messages described Joint Stipulation of Facts No. 23, and that the exceptions do not alter the overall character of the ban. Unlike the on-premises sign, the off-premises billboard "is, generally speaking, made available to 'all-comers', in a fashion similar to newspaper or broadcasting advertising. It is a forum for the communication of messages to the public." Joint Stipulation of Facts No. 22(c), App. 46a.5 Speakers in San Diego no longer have the opportunity to communicate their messages of general applicability to the public through billboards. None of the exceptions provides a practical alternative for the general commercial or noncommercial billboard advertiser. Indeed, unless the advertiser chooses to buy or lease premises in the city, or unless his message falls within one of the narrow exempted categories, he is foreclosed from announcing either commercial or noncommercial ideas through a billboard. 75 The characterization of the San Diego regulation as a total ban of a medium of communication has more than semantic implications, for it suggests a First Amendment analysis quite different from the plurality's. Instead of relying on the exceptions to the ban to invalidate the ordinance, I would apply the tests this Court has developed to analyze content-neutral prohibitions of particular media of communication.6 Most recently, in Schad v. Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981), this Court assessed "the substantiality of the governmental interests asserted" and "whether those interests could be served by means that would be less intrusive on activity protected by the First Amendment," in striking down the borough's total ban on live commercial entertainment. Id., at 70, 101 S.Ct., at 2183. Schad merely articulated an analysis applied in previous cases concerning total bans of media of expression. For example, in Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939), the Court struck down total bans on handbill leafletting because there were less restrictive alternatives to achieve the goal of prevention of litter, in fact alternatives that did not infringe at all on that important First Amendment privilege. Id., at 162, 60 S.Ct., at 151. In Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943), the Court invalidated a municipal ordinance that forbade persons from engaging in the time-honored activity of door-to-door solicitation. See also Jamison v. Texas, 318 U.S. 413, 416-417, 63 S.Ct. 669, 671-672, 87 L.Ed. 869 (1943) (distribution of handbills); Hague v. CIO, 307 U.S. 496, 518, 59 S.Ct. 954, 965, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.) (distribution of pamphlets). See generally Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205, 1335-1336 (1970). 76 Of course, as the plurality notes, "[e]ach method of communicating ideas is 'a law unto itself' and that law must reflect the 'differing natures, values, abuses and dangers' of each method." Ante, at 501, quoting Kovacs v. Cooper, supra, at 97, 69 S.Ct., at 458 (Jackson, J., concurring). Similarly, inSoutheastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448 (1975), this Court observed: "Each medium of expression, of course, must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems." It is obvious that billboards do present their own unique problems: they are large immobile structures that depend on eye-catching visibility for their value. At the same time, the special problems associated with billboards are not of a different genus than those associated with commercial live entertainment in the borough of Mount Ephraim, or with door-to-door literature distribution in the city of Struthers. In the case of billboards, I would hold that a city may totally ban them if it can show that a sufficiently substantial governmental interest is directly furthered by the total ban, and that any more narrowly drawn restriction, i. e., anything less than a total ban, would promote less well the achievement of that goal. 77 Applying that test to the instant case, I would invalidate the San Diego ordinance. The city has failed to provide adequate justification for its substantial restriction on protected activity. See Schad v. Mount Ephraim, supra, at 72, 101 S.Ct., at 2184. First, although I have no quarrel with the substantiality of the city's interest in traffic safety, the city has failed to come forward with evidence demonstrating that billboards actually impair traffic safety in San Diego. Indeed, the joint stipulation of facts is completely silent on this issue. Although the plurality hesitates "to disagree with the accumulated, common-sense judgments of local lawmakers and of the many reviewing courts that billboards are real and substantial hazards to traffic safety," ante, at 509, I would not be so quick to accept legal conclusions in other cases as an adequate substitute for evidence in this case that banning billboards directly furthers traffic safety.7 Moreover, the ordinance is not narrowly drawn to accomplish the traffic safety goal. Although it contains an exception for signs "not visible from any point on the boundary of the premises," App. to Juris. Statement 111a, billboards not visible from the street but nevertheless visible from the "boundary of the premises" are not exempted from the regulation's prohibition. 78 Second, I think that the city has failed to show that its asserted interest in aesthetics is sufficiently substantial in the commercial and industrial areas of San Diego. I do not doubt that "[i]t is within the power of the [city] to determine that the community should be beautiful," Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954), but that power may not be exercised in contravention of the First Amendment. This Court noted in Schad that "[t]he [city] has presented no evidence, and it is not immediately apparent as a matter of experience, that live entertainment poses problems . . . more significant than those associated with various permitted uses; nor does it appear that the [city] has arrived at a defensible conclusion that unusual problems are presented by live entertainment." 452 U.S., at 73, 101 S.Ct., at 2185. Substitute the word "billboards" for the words "live entertainment," and that sentence would equally apply to this case. 79 It is no doubt true that the appearance of certain areas of the city would be enhanced by the elimination of billboards, but "it is not immediately apparent as a matter of experience" that their elimination in all other areas as well would have more than a negligible impact on aesthetics. See John Donnelly & Sons v. Campbell, 639 F.2d 6, 23 (C.A.1 1980) (Pettine, J., concurring in judgment), summarily aff'd, 453 U.S. 916, 101 S.Ct. 3151, 69 L.Ed.2d 999.8 The joint stipulation reveals that 80 "[s]ome sections of the City of San Diego are scenic, some blighted, some containing strips of vehicle related commercial uses, some contain new and attractive office buildings, some functional industrial development and some areas contain older but useful commercial establishments." Joint Stipulation of Facts No. 8, App. 43a. 81 A billboard is not necessarily inconsistent with oil storage tanks, blighted areas, or strip development. Of course, it is not for a court to impose its own notion of beauty on San Diego. But before deferring to a city's judgment, a court must be convinced that the city is seriously and comprehensively addressing aesthetic concerns with respect to its environment. Here, San Diego has failed to demonstrate a comprehensive coordinated effort in its commercial and industrial areas to address other obvious contributors to an unattractive environment. In this sense the ordinance is underinclusive. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 214, 95 S.Ct. 2268, 2275, 45 L.Ed.2d 125 (1975). Of course, this is not to say that the city must address all aesthetic problems at the same time, or none at all. Indeed, from a planning point of view, attacking the problem incrementally and sequentially may represent the most sensible solution. On the other hand, if billboards alone are banned and no further steps are contemplated or likely, the commitment of the city to improving its physical environment is placed in doubt. By showing a comprehensive commitment to making its physical environment in commercial and industrial areas more attractive,9 and by allowing only narrowly tailored exceptions, if any,10 San Diego could demonstrate that its interest in creating an aesthetically pleasing environment is genuine and substantial. This is a requirement where, as here, there is an infringement of important constitutional consequence. 82 I have little doubt that some jurisdictions will easily carry the burden of proving the substantiality of their interest in aesthetics. For example, the parties acknowledge that a historical community such as Williamsburg, Va. should be able to prove that its interest in aesthetics and historical authenticity are sufficiently important that the First Amendment value attached to billboards must yield. See Tr. of Oral Arg., 22-25. And I would be surprised if the Federal Government had much trouble making the argument that billboards could be entirely banned in Yellowstone National Park, where their very existence would so obviously be inconsistent with the surrounding landscape. I express no view on whether San Diego or other large urban areas will be able to meet the burden.11 See Schad v. Mount Ephraim, supra, 452 U.S., at 77, 101 S.Ct., at 2187 (BLACKMUN, J., concurring). But San Diego failed to do so here, and for that reason I would strike down its ordinance. III 83 The plurality's treatment of the commercial-noncommercial distinction in this case is mistaken in its factual analysis of the San Diego ordinance, and departs from this Court's precedents. In Part IV of its opinion, the plurality concludes that the San Diego ordinance is constitutional insofar as it regulates commercial speech. Under its view, a city with merely a reasonable justification could pick and choose between those commercial billboards it would allow and those it would not, or could totally ban all commercial billboards.12 In Part V, the plurality concludes, however, that the San Diego ordinance as a whole is unconstitutional because, inter alia, it affords a greater degree of protection to commercial than to noncommercial speech: 84 "The use of onsite billboards to carry commercial messages related to the commercial use of the premises is freely permitted, but the use of otherwise identical billboards to carry noncommercial messages is generally prohibited. . . . Insofar as the city tolerates billboards at all, it cannot choose to limit their content to commercial messages; the city may not conclude that the communication of commercial information concerning goods and services connected with a particular site is of greater value than the communication of noncommercial messages." Ante, at 513. 85 The plurality apparently reads the onsite premises exception as limited solely to commercial speech. I find no such limitation in the ordinance. As notedsupra, the onsite exception allows "signs designating the name of the owner or occupant of the premises upon which such signs are placed, or identifying such premises; or signs advertising goods manufactured or produced or services rendered on the premises upon which such signs are placed." App. to Juris. Statement 107a. As I read the ordinance, the content of the sign depends strictly on the identity of the owner or occupant of the premises. If the occupant is a commercial enterprise, the substance of a permissible identifying sign would be commercial. If the occupant is an enterprise usually associated with noncommercial speech, the substance of the identifying sign would be noncommercial. Just as a supermarket or barbershop could identify itself by name, so too could a political campaign headquarters or a public interest group. I would also presume that, if a barbershop could advertise haircuts, a political campaign headquarters could advertise "Vote for Brown," or "Vote for Proposition 13." 86 More importantly, I cannot agree with the plurality's view that an ordinance totally banning commercial billboards but allowing noncommercial billboards would be constitutional.13 For me, such an ordinance raises First Amendment problems at least as serious as those raised by a total ban, for it gives city officials the right—before approving a billboard—to determine whether the proposed message is "commercial" or "noncommercial." Of course the plurality is correct when it observes that "our cases have consistently distinguished between the constitutional protection afforded commercial as opposed to noncommercial speech," ante, at 504-505, but it errs in assuming that a governmental unit may be put in the position in the first instance of deciding whether the proposed speech is commercial or noncommercial. In individual cases, this distinction is anything but clear. Because making such determinations would entail a substantial exercise of discretion by a city's officials, it presents a real danger of curtailing noncommercial speech in the guise of regulating commercial speech. 87 In Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), the Court reviewed a statute prohibiting solicitation of money by religious groups unless such solicitation was approved in advance by the Secretary of the Public Welfare Council. The statute provided in relevant part: 88 "Upon application of any person in behalf of such [solicitation], the secretary shall determine whether such cause is a religious one . . . and conforms to reasonable standards of efficiency and integrity, and, if he shall so find, shall approve the same and issue to the authority in charge a certificate to that effect." Id., at 302, 60 S.Ct., at 902. 89 The Court held that conditioning the ability to solicit on a license, "the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution." Id., at 307, 60 S.Ct., at 904-905. Specifically rejecting the State's argument that arbitrary and capricious acts of a state officer would be subject to judicial review, the Court observed: 90 "Upon [the state official's] decision as to the nature of the cause, the right to solicit funds depends. . . . [T]he availability of a judicial remedy for abuses in the system of licensing still leaves that system one of previous restraint which, in the field of free speech and press, we have held inadmissible." Id., at 306, 60 S.Ct., at 904. 91 See Saia v. New York, 334 U.S. 558, 560, 68 S.Ct. 1148, 1149, 92 L.Ed. 1574 (1948). As Justice Frankfurter subsequently characterized Cantwell : "To determine whether a cause is, or is not, 'religious' opens too wide a field of personal judgment to be left to the mere discretion of an official." 334 U.S., at 564, 68 S.Ct., at 1152 (dissenting opinion). 92 According such wide discretion to city officials to control the free exercise of First Amendment rights is precisely what has consistently troubled this Court in a long line of cases starting with Lovell v. Griffin, 303 U.S. 444, 451, 58 S.Ct. 666, 668, 82 L.Ed. 949 (1938). See, e. g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S., at 552-553, 95 S.Ct., at 1243-1244 (theatrical performance in city-owned auditorium); Shuttlesworth v. Birmingham, 394 U.S. 147, 150-153, 89 S.Ct. 935, 938-940, 22 L.Ed.2d 162 (1969) (picketing and parading); Staub v. City of Baxley, 355 U.S. 313, 321-325, 78 S.Ct. 277, 281-284, 2 L.Ed.2d 302 (1958) (solicitation); Kunz v. New York, 340 U.S. 290, 294, 71 S.Ct. 312, 315, 95 L.Ed. 280 (1951) (public meetings); Saia v. New York, supra, 334 U.S., at 560-562, 68 S.Ct., at 1149-1151 (sound trucks); Cantwell v. Connecticut, supra, 310 U.S., at 307, 60 S.Ct., at 904 (solicitation); Schneider v. State, 308 U.S., at 163-164, 60 S.Ct., at 151-152 (handbills); Hague v. CIO, 307 U.S., at 516, 59 S.Ct., at 964 (handbills). See also Young v. American Mini Theatres, Inc., 427 U.S. 50, 93, 96 S.Ct. 2440, 2463, 49 L.Ed.2d 310 (1976) (BLACKMUN, J., dissenting); Hynes v. Mayor and Council of Oradell, 425 U.S. 610, 617, 96 S.Ct. 1755, 1759, 48 L.Ed.2d 243 (1976); Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, 97, 92 S.Ct. 2286, 2291, 33 L.Ed.2d 212 (1972). The plurality's bifurcated approach, I fear, will generate billboard ordinances providing the grist for future additions to this list, for it creates discretion where none previously existed. 93 It is one thing for a court to classify in specific cases whether commercial or noncommercial speech is involved, but quite another—and for me dispositively so—for a city to do so regularly for the purpose of deciding what messages may be communicated by way of billboards. Cities are equipped to make traditional police power decisions, see Saia v. New York, supra, 334 U.S., at 564-565, 68 S.Ct., at 1151-1152 (FRANKFURTER, J., dissenting), not decisions based on the content of speech. I would be unhappy to see city officials dealing with the following series of billboards and deciding which ones to permit: the first billboard contains the message "Visit Joe's Ice Cream Shoppe"; the second, "Joe's Ice Cream Shoppe uses only the highest quality dairy products"; the third, "Because Joe thinks that dairy products are good for you, please shop at Joe's Shoppe"; and the fourth, "Joe says to support dairy price supports; they mean lower prices for you at his Shoppe." Or how about some San Diego Padres baseball fans with no connection to the team—who together rent a billboard and communicate the message "Support the San Diego Padres, a great baseball team." May the city decide that a United Automobile Workers billboard with the message "Be a patriot—do not buy Japanese-manufactured cars" is "commercial" and therefore forbid it? What if the same sign is placed by Chrysler?14 94 I do not read our recent line of commercial cases as authorizing this sort of regular and immediate line-drawing by governmental entities. If anything, our cases recognize the difficulty in making a determination that speech is either "commercial" or "noncommercial." In Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 764, 96 S.Ct. 1817, 1827, 48 L.Ed.2d 346 (1976), after noting that "not all commercial messages contain . . . a very great public interest element," the Court suggested that "[t]here are few to which such an element, however, could not be added." The Court continued: "Our pharmacist, for example, could cast himself as a commentator on store-to-store disparities in drug prices, giving his own and those of a competitor as proof. We see little point in requiring him to do so, and little difference if he does not." Id., at 764-765, 96 S.Ct., at 1827. Cf. Murdock v. Pennsylvania, 319 U.S. 105, 111, 63 S.Ct. 870, 874, 87 L.Ed. 1292 (1943). In Bigelow v. Virginia, 421 U.S. 809, 822, 95 S.Ct. 2222, 2232, 44 L.Ed.2d 600 (1975), the Court observed that the advertisement of abortion services placed by a New York clinic in a Virginia weekly newspaper—although in part a commercial advertisement—was far more than that: 95 "Viewed in its entirety, the advertisement conveyed information of potential interest and value to a diverse audience—not only to readers possibly in need of the services offered, but also to those with a general curiosity about, or genuine interest in, the subject matter or the law of another State and its development, and to readers seeking reform in Virginia. The mere existence of the Women's Pavilion in New York City, with the possibility of its being typical of other organizations there, and the availability of the services offered, were not unnewsworthy." 96 "The line between ideological and nonideological speech is impossible to draw with accuracy." Lehman v. City of Shaker Heights, 418 U.S. 298, 319, 94 S.Ct. 2714, 2725, 41 L.Ed.2d 770 (1974) (BRENNAN, J., dissenting). I have no doubt that those who seek to convey commercial messages will engage in the most imaginative of exercises to place themselves within the safe haven of noncommercial speech, while at the same time conveying their commercial message. Encouraging such behavior can only make the job of city officials—who already are inclined to ban billboards that much more difficult and potentially intrusive upon legitimate noncommercial expression. 97 Accordingly, I would reverse the decision of the California Supreme Court upholding the San Diego billboard ordinance. 98 Justice STEVENS, dissenting in part. 99 If enforced as written, the ordinance at issue in this case will eliminate the outdoor advertising business in the city of San Diego.1 The principal question presented is, therefore, whether a city may prohibit this medium of communication. Instead of answering that question, the plurality focuses its attention on the exceptions from the total ban and, somewhat ironically, concludes that the ordinance is an unconstitutional abridgment of speech because it does not abridge enough speech.2 100 The plurality first holds that a total prohibition of the use of "outdoor advertising display signs"3 for commercial messages, other than those identifying or promoting a business located on the same premises as the sign, is permissible. I agree with the conclusion that the constitutionality of this prohibition is not undercut by the distinction San Diego has drawn between onsite and offsite commercial signs, see ante, at 512 (plurality opinion), and I therefore join Parts I through IV of Justice WHITE's opinion. I do not, however, agree with the reasoning which leads the plurality to invalidate the ordinance because San Diego failed to include a total ban on the use of billboards for both commercial and noncommercial messages. While leaving open the possibility that a total ban on billboards would be permissible, see ante, at 515, n. 20,4 the plurality finds two flaws in the ordinance. First, because the ordinance permits commercial, but not noncommercial, use of onsite signs, it improperly "afford[s] a greater degree of protection to commercial than to noncommercial speech." Ante, at 513. And, second, because the ordinance excepts certain limited categories of noncommercial signs from the prohibition, the city is guilty of "choos[ing] the appropriate subjects for public discourse." Ante, at 515. 101 Although it is possible that some future applications of the San Diego ordinance may violate the First Amendment, I am satisfied that the ordinance survives the challenges that these appellants have standing to raise. Unlike the plurality, I do not believe that this case requires us to decide any question concerning the kind of signs a property owner may display on his own premises. I do, however, believe that it is necessary to confront the important question, reserved by the plurality, whether a city may entirely ban one medium of communication. My affirmative answer to that question leads me to the conclusion that the San Diego ordinance should be upheld; that conclusion is not affected by the content-neutral exceptions that are the principal subject of the debate between the plurality and THE CHIEF JUSTICE. 102 * Appellants are engaged in the outdoor advertising business. The parties stipulated that there are critical differences between that business and so-called "onsite" or business signs.5 Outdoor advertising is presented on large, standardized billboards which display a variety of commercial and noncommercial messages that change periodically.6 The only information in the record about onsite signs is that they "advertise businesses, goods or services available on the property on which the sign is located." Joint Stipulation of Facts No. 22, App. 45a. There is no evidence that any onsite signs in San Diego of the permanent character covered by the ordinance7 have ever been used for noncommercial messages. 103 If the ordinance is enforced, two consequences are predictable. Appellants' large and profitable outdoor advertising businesses will be destroyed.8 Moreover, many persons who now rent billboards to convey both commercial and noncommercial messages to the public will not have access to an equally effective means of communication.9 There is no evidence, however, that enforcement of the ordinance will have any effect whatsoever upon any property owner's use of onsite advertising signs.10 Nor is there anything in the record to suggest that the use of onsite signs has had any effect on the outdoor advertising business or on any of the consumers of offsite billboard space. 104 Appellants, of course, have standing to challenge the ordinance because of its impact on their own commercial operations. Because this challenge is predicated in part on the First Amendment, I agree with the plurality and Justice BRENNAN that they also have standing to argue that the ordinance is invalid because of its impact on their customers—the persons who use their billboards to communicate with the public. See ante, at 504, n. 11 (plurality opinion). I do not agree, however, that they have any standing to assert the purely hypothetical claims of property owners whose on-site advertising is entirely unaffected by the application of the ordinance at issue in this case. 105 This case involves only the use of permanent signs in areas zoned for commercial and industrial purposes.11 It is conceivable that some public-spirited or eccentric businessman might want to use a permanent sign on his commercial property to display a noncommercial message. The record, however, discloses no such use in the past, and it seems safe to assume that such uses in the future will be at best infrequent. Rather than speculate about hypothetical cases that may be presented by property owners not now before the Court, I would judge this ordinance on the basis of its effect on the outdoor advertising market and save for another day any questions concerning its possible effect in an entirely separate market. 106 The few situations in which constitutional rights may be asserted vicariously represent exceptions from one of the Court's most fundamental principles of constitutional adjudication.12 Our explanation of that principle in Broadrick v. Oklahoma, 413 U.S. 601, 610-611, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (footnote omitted), merits emphasis and repetition: 107 "Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court. See, e. g., Austin v. The Aldermen, 7 Wall. 694, 698-699 [19 L.Ed. 224] (1869); Supervisors v. Stanley, 105 U.S. 305, 311-315 [26 L.Ed. 1044] (1882); Hatch v. Reardon, 204 U.S. 152, 160-161 [27 S.Ct. 188, 190-191, 51 L.Ed. 415] (1907); Yazoo & M. V. R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 219-220 [33 S.Ct. 40, 41, 57 L.Ed. 193] (1912); United States v. Wurzbach, [280 U.S.], at 399 [50 S.Ct., at 169]; Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 513 [57 S.Ct. 868, 874, 81 L.Ed. 1245] (1937); United States v. Raines, 362 U.S. 17 [80 S.Ct. 519, 4 L.Ed.2d 524] (1960). A closely related principle is that constitutional rights are personal and may not be asserted vicariously. See McGowan v. Maryland, 366 U.S. 420, 429-430 [81 S.Ct. 1101, 1106-1107, 6 L.Ed.2d 393] (1961). These principles rest on more than the fussiness of judges. They reflect the conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation's laws. See Younger v. Harris, 401 U.S. 37, 52 [91 S.Ct. 746, 754, 27 L.Ed.2d 669] (1971). Constitutional judgments, as Mr. Chief Justice Marshall recognized, are justified only out of the necessity of adjudicating rights in particular cases between the litigants brought before the Court: 108 " 'So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.' Marbury v. Madison, 1 Cranch 137, 178 [2 L.Ed. 60] (1803). 109 "In the past, the Court has recognized some limited exceptions to these principles, but only because of the most 'weighty countervailing policies.' United States v. Raines, 362 U.S., at 22-23 [80 S.Ct., at 523-524]." 110 The most important exception to this standing doctrine permits some litigants to challenge on First Amendment grounds laws that may validly be applied against them but which may, because of their unnecessarily broad reach, inhibit the protected speech of third parties. That exception plays a vital role in our First Amendment jurisprudence.13 But it is nonetheless a limited exception. Because "[a]pplication of the overbreadth doctrine . . . is, manifestly, strong medicine," it is employed "sparingly and only as a last resort." Broadrick, 413 U.S., at 613, 93 S.Ct., at 2916. As the Court explained in Broadrick, the doctrine will be applied only if the overbreadth of a statute is substantial in relation to its "plainly legitimate sweep": 111 "Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect—at best a prediction—cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. Cf. Alderman v. United States, 394 U.S. 165, 174-175 [89 S.Ct. 961, 966-967, 22 L.Ed.2d 176] (1969). To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that § 818 is not substantially overbroad and that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied." Id., at 615-616, 93 S.Ct., at 2917-2918 (footnote omitted).14 112 In my judgment, the likelihood that the San Diego ordinance will have a significant adverse impact on the users of onsite signs is sufficiently speculative and remote that I would not attempt to adjudicate the hypothetical claims of such parties on this record. Surely the interests of such parties do not necessarily parallel the interests of these appellants.15 Moreover, changes in the provisions of the ordinance concerning onsite advertising would not avoid the central question that is presented by appellants' frontal attack on the application of the ordinance to their own businesses and to their customers.16 I believe the Court should decide that question and put the hypothetical claims of onsite advertisers entirely to one side. II 113 Just as the regulation of an economic market may either enhance or curtail the free exchange of goods and services,17 so may regulation of the communications market sometimes facilitate and sometimes inhibit the exchange of information ideas, and impressions. Procedural rules in a deliberative body are designed to improve the quality of debate. Our cases upholding regulation of the time, place, or manner of communication have been decided on the implicit assumption that the net effect of the regulation on free expression would not be adverse. In this case, however, that assumption cannot be indulged. 114 The parties have stipulated, correctly in my view,18 that the net effect of the city's ban on billboards will be a reduction in the total quantity of communication in San Diego. If the ban is enforced, some present users of billboards will not be able to communicate in the future as effectively as they do now.19 This ordinance cannot, therefore, be sustained on the assumption that the remaining channels of communication will be just as effective for all persons as a communications marketplace which includes a thousand or more large billboards available for hire. 115 The unequivocal language of the First Amendment prohibits any law "abridging the freedom of speech." That language could surely be read to foreclose any law reducing the quantity of communication within a jurisdiction. I am convinced, however, that such a reading would be incorrect. My conviction is supported by a hypothetical example, by the Court's prior cases, and by an appraisal of the healthy character of the communications market. 116 Archaeologists use the term "graffiti" to describe informal inscriptions on tombs and ancient monuments. The graffito was familiar in the culture of Egypt and Greece, in the Italian decorative art of the 15th century, and it survives today in some subways and on the walls of public buildings.20 It is an inexpensive means of communicating political, commercial, and frivolous messages to large numbers of people; some creators of graffiti have no effective alternative means of publicly expressing themselves. Nevertheless, I believe a community has the right to decide that its interests in protecting property from damaging trespasses and in securing beautiful surroundings outweigh the countervailing interest in uninhibited expression by means of words and pictures in public places. If the First Amendment categorically protected the marketplace of ideas from any quantitative restraint, a municipality could not outlaw graffiti. 117 Our prior decisions are not inconsistent with this proposition. Whether one interprets the Court's decision in Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513, as upholding a total ban on the use of sound trucks, or merely a ban on the "loud and raucous" use of amplifiers, the case at least stands for the proposition that a municipality may enforce a rule that curtails the effectiveness of a particular means of communication.21 Even the dissenting Justices in that case thought it obvious that "cities may restrict or absolutely ban the use of amplifiers on busy streets in the business area." Id., at 104, 69 S.Ct., at 462 (Black, J., joined by Douglas and Rutledge, JJ., dissenting).22 Kovacs, I believe, forecloses any claim that a prohibition of billboards must fall simply because it has some limitating effect on the communications market.23 118 I therefore assume that some total prohibitions may be permissible. It seems to be accepted by all that a zoning regulation excluding billboards from residential neighborhoods is justified by the interest in maintaining pleasant surroundings and enhancing property values. The same interests are at work in commercial and industrial zones. Reasonable men may assign different weights to the conflicting interests, but in constitutional terms I believe the essential inquiry is the same throughout the city. For whether the ban is limited to residential areas, to the entire city except its most unsightly sections, or is citywide, it unquestionably will limit the quantity of communication. Moreover, the interests served by the ban are equally legitimate and substantial in all parts of the city. Those interests are both psychological and economic. The character of the environment affects property values and the quality of life not only for the suburban resident but equally so for the individual who toils in a factory or invests his capital in industrial properties. 119 Because the legitimacy of the interests supporting a city-wide zoning plan designed to improve the entire municipality are beyond dispute, in my judgment the constitutionality of the prohibition of outdoor advertising involves two separate questions. First, is there any reason to believe that the regulation is biased in favor of one point of view or another, or that it is a subtle method of regulating the controversial subjects that may be placed on the agenda for public debate? Second, is it fair to conclude that the market which remains open for the communication of both popular and unpopular ideas is ample and not threatened with gradually increasing restraints? 120 In this case, there is not even a hint of bias or censorship in the city's actions. Nor is there any reason to believe that the overall communications market in San Diego is inadequate. Indeed, it may well be true in San Diego as in other metropolitan areas that the volume of communication is excessive and that the public is presented with too many words and pictures to recognize those that are most worthy of attention. In any event, I agree with THE CHIEF JUSTICE that nothing in this record suggests that the ordinance poses a threat to the interests protected by the First Amendment. III 121 If one is persuaded, as I am, that a wholly impartial total ban on billboards would be permissible,24 it is difficult to understand why the exceptions in San Diego's ordinance present any additional threat to the interests protected by the First Amendment. The plurarity suggests that, because the exceptions are based in part on the subject matter of noncommercial speech, the city somehow is choosing the permissible subjects for public debate. See ante, at 515. While this suggestion is consistent with some of the broad dictum in Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 100 S.Ct. 2326, 65 L.Ed.2d 319, it does not withstand analysis in this case. 122 The essential concern embodied in the First Amendment is that government not impose its viewpoint on the public or select the topics on which public debate is permissible. The San Diego ordinance simply does not implicate this concern. Although Consolidated Edison broadly identified regulations based on the subject matter of speech as impermissible content-based regulations, essential First Amendment concerns were implicated in that case because the government was attempting to limit discussion of controversial topics, see id., at 533, 100 S.Ct., at 2330, and thus was shaping the agenda for public debate. The neutral exceptions in the San Diego ordinance do not present this danger. 123 To the extent that the exceptions relate to subject matter at all,25 I can find no suggestion on the face of the ordinance that San Diego is attempting to influence public opinion or to limit public debate on particular issues. Except for the provision allowing signs to be used for political campaign purposes for limited periods, see § 101.0700(F)(12), none of the exceptions even arguably relates to any controversial subject matter. As a whole they allow a greater dissemination of information than could occur under a total plan. Moreover, it was surely reasonable for the city to conclude that exceptions for clocks, thermometers, historic plaques, and the like, would have a lesser impact on the appearance of the city than the typical large billboards. 124 The exception for political campaign signs presents a different question. For I must assume that these signs may be just as unsightly and hazardous as other offsite billboards. Nevertheless, the fact that the community places a special value on allowing additional communication to occur during political campaigns is surely consistent with the interests the First Amendment was designed to protect. Of course, if there were reason to believe that billboards were especially useful to one political party or candidate, this exception would be suspect. But nothing of that sort is suggested by this record. In the aggregate, therefore, it seems to me that the exceptions in this ordinance cause it to have a less serious effect on the communications market than would a total ban. 125 In sum, I agree with THE CHIEF JUSTICE that nothing more than a rather doctrinaire application of broad statements that were made in other contexts may support a conclusion that this ordinance is unconstitutional because it includes a limited group of exceptions that neither separately nor in the aggregate compromise "our zealous adherence to the principle that the government may not tell the citizen what he may or may not say." Young v. American Mini Theatres, Inc., 427 U.S. 50, 63, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310 (opinion of STEVENS, J.). None of the exceptions is even arguably "conditioned upon the sovereign's agreement with what a speaker may intend to say." Ibid. Accordingly, and for the reasons stated in greater detail by THE CHIEF JUSTICE, I respectfully dissent. 126 Chief Justice BURGER, dissenting. 127 Today the Court takes an extraordinary—even a bizarre—step by severely limiting the power of a city to act on risks it perceives to traffic safety and the environment posed by large, permanent billboards. Those joining the plurality opinion invalidate a city's effort to minimize these traffic hazards and eyesores simply because, in exercising rational legislative judgment, it has chosen to permit a narrow class of signs that serve special needs. 128 Relying on simplistic platitudes about content, subject matter, and the dearth of other means to communicate, the billboard industry attempts to escape the real and growing problems every municipality faces in protecting safety and preserving the environment in an urban area. The Court's disposition of the serious issues involved exhibits insensitivity to the impact of these billboards on those who must live with them and the delicacy of the legislative judgments involved in regulating them. American cities desiring to mitigate the dangers mentioned must, as a matter of federal constitutional law, elect between two unsatisfactory options: (a) allowing all "noncommercial" signs, no matter how many, how dangerous, or how damaging to the environment; or (b) forbidding signs altogether. Indeed, lurking in the recesses of today's opinions is a not-so-veiled threat that the second option, too, may soon be withdrawn. This is the long arm and voracious appetite of federal power—this time judicial power—with a vengeance, reaching and absorbing traditional concepts of local authority. 129 (1) 130 This case presents the Court with its first occasion to address the constitutionality of billboard regulation by local government. I fear that those joining in today's disposition have become mesmerized with broad, but not controlling, language appearing in our prior opinions but now torn from its original setting. They overlook a cogent admonition to avoid 131 "mechanically apply[ing] the doctrines developed in other contexts. . . . The unique situation presented by this ordinance calls, as cases in this area so often do, for a careful inquiry into the competing concerns of the State and the interests protected by the guarantee of free expression." Young v. American Mini Theatres, Inc., 427 U.S. 50, 76, 96 S.Ct. 2440, 2455, 49 L.Ed.2d 310 (1976) (POWELL, J., concurring). 132 See Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 134, 93 S.Ct. 2080, 2102, 36 L.Ed.2d 772 (1973) (STEWART, J., concurring). 133 It is not really relevant whether the San Diego ordinance is viewed as a regulation regarding time, place, and manner, or as a total prohibition on a medium with some exceptions defined, in part, by content. Regardless of the label we give it, we are discussing a very simple and basic question: the authority of local government to protect its citizens' legitimate interests in traffic safety and the environment by eliminating distracting and ugly structures from its buildings and roadways, to define which billboards actually pose that danger, and to decide whether, in certain instances, the public's need for information outweighs the dangers perceived. The billboard industry's superficial sloganeering is no substitute for analysis, and the plurality opinion and the opinion concurring in the judgment adopt much of that approach uncritically. General constitutional principles indeed apply, but "each case ultimately must depend on its own specific facts . . . ." Erznoznick v. City of Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 2272, 45 L.Ed.2d 125 (1975). 134 (2) 135 (a) 136 As all those joining in today's disposition necessarily recognize, " '[e]ach medium of expression . . . must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems.' " Ante, at 501, n.8 (plurality opinion); ante, at 527-528 (BRENNAN, J., concurring in judgment) (quoting Southeastern Promotions, Ltd., v. Conrad, 420 U.S. 546, 557, 95 S.Ct. 1239, 1245, 43 L.Ed.2d 448 (1975)). Accord, California v. LaRue, 409 U.S. 109, 117, 93 S.Ct. 390, 396, 34 L.Ed.2d 342 (1972); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386, 89 S.Ct. 1794, 1804 (1969); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503, 23 L.Ed.2d 371 (1952); Kovacs v. Cooper, 336 U.S. 77, 97, 69 S.Ct. 448, 458, 93 L.Ed. 513 (1949) (Jackson, J., concurring).1 The uniqueness of the medium, the availability of alternative means of communication, and the public interest the regulation serves are important factors to be weighed; and the balance very well may shift when attention is turned from one medium to another. Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). Regulating newspapers, for example, is vastly different from regulating billboards. 137 Some level of protection is generally afforded to the medium a speaker chooses, but as we have held just this past week in Heffron, "the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired." Id., at 647, 101 S.Ct., at 2563 (emphasis added). Justice Black, speaking for the Court in Adderley v. Florida, 385 U.S. 39, 48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966) (emphasis added), "vigorously and forthrightly rejected" the notion that "people who want to propagandize protests or views have a constitution right to do so whenever and however and wherever they please." 138 In Kovacs v. Cooper, supra, the Court upheld a municipal ordinance that totally banned sound trucks from a town's borders; other media were available. The Court had no difficulty distinguishing Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948), decided seven months earlier, where the Court had invalidated an ordinance requiring a permit from the local police chief before using a sound truck. The danger seen in Saia was in allowing a single government official to regulate a medium of communication with the attendant risk that the decision would be based on the message, not the medium. Id., at 560-561, 68 S.Ct., at 1149-1150. 139 The ordinance in Kovacs, however, did not afford that kind of potential for censorship and was held not to violate the First Amendment. 336 U.S., at 82-83, 69 S.Ct., at 451 (plurality opinion of Reed, J.). Justice Frankfurter, concurring, expressed this point more broadly: 140 "So long as a legislature does not prescribe what ideas may be noisily expressed and what may not be, nor discriminate among those who would make inroads upon the public peace, it is not for us to supervise the limits the legislature may impose in safeguarding the steadily narrowing opportunities for serenity and reflection." Id., at 97, 69 S.Ct., at 458. 141 Justice Jackson, also concurring separately, agreed with this core proposition, writing that the Kovacs type of regulation would not infringe freedoms of speech "unless such regulation or prohibition undertakes to censor the contents of the broadcasting." Ibid. 142 Later, Chief Justice Warren, speaking for the Court in United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968), observed: 143 "[W]hen 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." 144 In the 1979 Term, we once again reaffirmed that restrictions are valid if they "serve a significant governmental interest and leave ample alternative channels for communication." Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 535, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980). The Court has continued to apply this same standard almost literally to this day in Heffron v. International Society for Krishna Consciousness, Inc., supra, at 647-648, 101 S.Ct., at 2564. Accord, Schad v. Mount Ephraim, 452 U.S. 61, 75-76, 101 S.Ct. 2176, 2186, 68 L.Ed.2d 671 (1981). 145 (b) 146 San Diego adopted its ordinance to eradicate what it perceives—and what it has a right to perceive—as ugly and dangerous eyesores thrust upon its citizens. This was done with two objectives in mind: the disfigurement of the surroundings and the elimination of the danger posed by these large, eye-catching signs that divert the attention of motorists.2 The plurality acknowledges—as they must—that promoting traffic safety and preserving scenic beauty "are substantial governmental goals." Ante, at 507-508. See also ante, at 528 (BRENNAN, J., concurring in judgment) (traffic safety). But, having acknowledged the legitimacy of local governmental authority, the plurality largely ignores it. 147 As the plurality also recognizes, ante, at 508-510, the means the city has selected to advance these goals are sensible and do not exceed what is necessary to eradicate the dangers seen. When distraction of motorists is the perceived harm, the authorities reasonably can conclude that each billboard adds to the dangers in moving traffic; obviously, the billboard industry does not erect message carriers that do not catch the eye of the traveler.3 In addition, a legislative body reasonably can conclude that every large billboard adversely affects the environment, for each destroys a unique perspective on the landscape and adds to the visual pollution of the city.4 Pollution is not limited to the air we breath and the water we drink; it can equally offend the eye and the ear. 148 The means chosen to effectuate legitimate governmental interests are not for this Court to select. "These are matters for the legislative judgment controlled by public opinion." Kovacs v. Cooper, 336 U.S., at 96-97, 69 S.Ct., at 458. (Frankfurter, J., concurring). The plurality ignores this Court's seminal opinions in Kovacs by substituting its judgment for that of city officials and disallowing a ban on one offensive and intrusive means of communication when other means are available. Although we must ensure that any regulation of speech "further[s] a sufficiently substantial government interest," Schad v. Mount Ephraim, supra, at 68, 101 S.Ct., at 2183, given a reasonable approach to a perceived problem, this Court's duty is not to make the primary policy decisions but instead is to determine whether the legislative approach is essentially neutral to the messages conveyed and leaves open other adequate means of conveying those messages. This is the essence of both democracy and federalism, and we gravely damage both when we undertake to throttle legislative discretion and judgment at the "grass roots" of our system. 149 (c) 150 The plurality, in a remarkable ipse dixit, states that "[t]here can be no question that a prohibition on the erection of billboards infringes freedom of speech . . . ." Ante, at 520. Of course the city has restricted one form of communication, and this action implicates the First Amendment. But to say the ordinance presents a First Amendment issue is not necessarily to say that it constitutes a First Amendment violation. The plurality confuses the Amendment's coverage with the scope of its protection. See generally Schauer, Categories and the First Amendment: A Play in Three Acts, 34 Vand.L.Rev. 265, 270, 275-276 (1981). 151 In the process of eradicating the perceived harms, the ordinance here in no sense suppresses freedom of expression, either by discriminating among ideas or topics or by suppressing discussion generally. San Diego has not attempted to suppress any particular point of view or any category of messages; it has not censored any information; it has not banned any thought. See Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972). It has not "attempt[ed] to give one side of a debatable public question an advantage in expressing its view to the people . . . ." First National Bank of Boston v. Bellotti, 435 U.S. 765, 785, 98 S.Ct. 1407, 1420, 55 L.Ed.2d 707 (1978) (footnote omitted). See 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 (1976). There is no suggestion or danger that the city has permitted these narrow categories of signs but forbidden the vast majority "merely because public officials disapprove of the speaker's view." Niemotko v. Maryland, 340 U.S. 268, 282, 71 S.Ct. 325, 333, 95 L.Ed. 267 (1951) (FRANKFURTER, J., concurring in result). Moreover, aside from a few narrow and essentially negligible exceptions, see infra, at 564-565, 566, San Diego has not differentiated with regard to topic. See Consolidated Edison Co. v. Public Service Comm'n, 447 U.S., at 537-538, 100 S.Ct., at 2333; Carey v. Brown, 447 U.S. 455, 462, n. 6, 463, 100 S.Ct. 2286, 2291, n. 6, 2291, 65 L.Ed.2d 263 (1980); First National Bank v. Bellotti, supra, 435 U.S., at 784-785, 98 S.Ct., at 1420; Police Dept. of Chicago v. Mosley, supra, 408 U.S., at 96, 92 S.Ct., at 2290. The city has not undertaken to determine, paternalistically, " 'what information is relevant to self-government.' " Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S.Ct. 2997, 3005, 41 L.Ed.2d 789 (1974) (quoting Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 79, 91 S.Ct. 1811, 1837, 29 L.Ed.2d 296 (1971) (MARSHALL, J., dissenting)). 152 The messages conveyed on San Diego billboards—whether commercial, political, social, or religious—are not inseparable from the billboards that carry them. These same messages can reach an equally large audience through a variety of other media: newspapers, television, radio, magazines, direct mail, pamphlets, etc. True, these other methods may not be so "eye-catching"—or so cheap—as billboards,5 but there has been no suggestion that billboards heretofore have advanced any particular viewpoint or issue disproportionately to advertising generally. Thus, the ideas billboard advertisers have been presenting are not relatively disadvantaged vis-a-vis the messages of those who heretofore have chosen other methods of spreading their views. See First National Bank v. Bellotti, supra, at 789, 98 S.Ct., at 1422. See also Martin v. City of Struthers, 319 U.S. 141, 146, 63 S.Ct. 862, 864, 87 L.Ed. 1313 (1943). It borders on the frivolous to suggest that the San Diego ordinance infringes on freedom of expression, given the wide range of alternative means available. 153 (3) 154 (a) 155 The plurality concludes that a city may constitutionally exercise its police power by eliminating offsite commercial billboards; they reach this result by following our recent cases holding that commercial speech, while protected by the Constitution, receives less protection than "noncommercial"—i. e., political, religious, social—speech. See, e. g., Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980); Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978); Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). But as the plurality giveth, they also taketh away and, in the process take away virtually everything. 156 In a bizarre twist of logic, the plurality seems to hold that because San Diego has recognized the hardships of its ordinance on certain special needs of citizens and, therefore, exempted a few narrowly defined classes of signs from the ordinance's scope—for example, onsite signs identifying places of business, time-and-temperature signs, commemorative and historic plaques—the ordinance violates the First Amendment. From these dubious premises, the plurality has given every city, town, and village in this country desiring to respond to the hazards posed by billboards a choice as previously noted, between two equally unsatisfactory alternatives: 157 (a) banning all signs of any kind whatsoever, or 158 (b) permitting all "noncommercial" signs, no matter how numerous, how large, how damaging to the environment, or how dangerous to motorists and pedestrians. 159 Otherwise, the municipality must give up and do nothing in the face of an ever-increasing menace to the urban environment. Indeed, the plurality hints—and not too subtly—that the first option might be withdrawn if any city attempts to invoke it. See, ante, at 515, n. 20. This result is insensitive to the needs of the modern urban dweller and devoid of valid constitutional foundations. 160 (b) 161 The exceptions San Diego has provided—the presence of which is the plurality's sole ground for invalidating the ordinance—are few in number, are narrowly tailored to peculiar public needs, and do not remotely endanger freedom of speech. Indeed, the plurality concludes that the distinctions among commercial signs are valid. Ante, at 512. More generally, as stated supra, at 562-563, San Diego has not preferred any viewpoint and, aside from these limited exceptions, has not allowed some subjects while forbidding others. 162 Where the ordinance does differentiate among topics, it simply allows such noncontroversial things as conventional signs identifying a business enterprise, time-and-temperature signs, historical markers, and for sale signs. It borders—if not trespasses—on the frivolous to suggest that, by allowing such signs but forbidding noncommercial billboards, the city has infringed freedom of speech. This ignores what we recognized in Police Dept. of Chicago v. Mosley, 408 U.S., at 98, 92 S.Ct., at 2291, that "there may be sufficient regulatory interests justifying selective exclusions or distinctions. . . ." For each exception, the city is either acknowledging the unique connection between the medium and the message conveyed, see, e. g., Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977) (for sale signs), or promoting a legitimate public interest in information. Similarly, in each instance, the city reasonably could conclude that the balance between safety and aesthetic concerns on the one hand and the need to communicate on the other has tipped the opposite way.6 More important, in no instance is the exempted topic controversial; there can be no rational debate over, for example, the time, the temperature, the existence of an offer of sale, or the identity of a business establishment. The danger of San Diego's setting the agenda of public discussion is not simply de minimis ; it is nonexistent. The plurality today trivializes genuine First Amendment values by hinging its holding on the city's decision to allow some signs while preventing others that constitute the vast majority of the genre. 163 Thus, despite the plurality's unique focus, we are not confronted with an ordinance like the one in Saia v. New York, which vested in a single official—the local police chief—an unlimited discretion to grant or to deny licenses for sound trucks. "Annoyance at ideas can be cloaked in annoyance at sound. The power of censorship inherent in this type of ordinance reveals its vice." 334 U.S., at 562, 68 S.Ct., at 1150. Accord, Shuttlesworth v. Birmingham, 394 U.S. 147, 150-151, 89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1969); Staub v. City of Baxley, 355 U.S. 313, 322-325, 78 S.Ct. 277, 282-284, 2 L.Ed.2d 302 (1958); Lovell v. Griffin, 303 U.S. 444, 451-452, 58 S.Ct. 666, 668-669, 82 L.Ed. 949 (1938). See also Consolidated Edison Co. v. Public Service Comm'n, 447 U.S., at 546-548, 100 S.Ct., at 2338-2339 (STEVENS, J., concurring in judgment). But here we have no allegation and no danger that San Diego is using its billboard ordinance as a mask for promoting or deterring any viewpoint or issue of public debate. This ordinance, is precisely the same sense as the regulation we upheld last week in Heffron v. International Society for Krishna Consciousness, Inc., "is not open to the kind of arbitrary application that this Court has condemned . . . because such discretion has the potential for becoming a means of suppressing a particular point of view." 452 U.S., at 649, 101 S.Ct., at 2564.7 164 San Diego simply is exercising its police power to provide an environment of tranquility, safety, and as much residual beauty as a modern metropolitan area can achieve. A city's simultaneous recognition of the need for certain exceptions permitting limited forms of communication, purely factual in nature and neutral as to the speaker, should not wholly deprive the city of its ability to address the balance of the problem. There is no threat here to our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open . . . ." New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964). (c) 165 The fatal flaw in the plurality's logic comes when it concludes that San Diego, by exempting on-site commercial signs, thereby has "afford[ed] a greater degree of protection to commercial than to noncommercial speech." Ante, at 513. The "greater degree of protection" our cases have given noncommercial speech establishes a narrow range of constitutionally permissible regulation. To say noncommercial speech receives a greater degree of constitutional protection, however, does not mean that a legislature is forbidden to afford differing degrees of statutory protection when the restrictions on each form of speech—commercial and noncommercial—otherwise pass constitutional muster under the standards respectively applicable. 166 No case in this Court creates, as the plurality suggests, a hierarchy of types of speech in which, if one type is actually protected through legislative judgment, the Constitution compels that that judgment be exercised in favor of all types ranking higher on the list. When a city chooses to impose looser restrictions in one area than it does in another analogous area even one in which the Constitution more narrowly constrains legislative discretion—it neither undermines the constitutionality of its regulatory scheme nor renders its legislative choices ipso facto irrational. A city does not thereby "conced[e] that some communicative interests . . . are stronger than its competing interests in esthetics and traffic safety," ante, at 520; it has only declined, in one area, to exercise its powers to the full extent the Constitution permits. The Constitution does not require any governmental entity to reach the limit of permissible regulation solely because it has chosen to do so in a related area. Cf. Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955) (a "legislature may select one phase of one field and apply a remedy there, neglecting the others"). The plurality today confuses the degree of constitutional protection—i. e., the strictness of the test applied—with the outcome of legislative judgment. 167 By allowing communication of certain commercial ideas via billboards, but forbidding noncommercial signs altogether, a city does not necessarily place a greater "value" on commercial speech.8 In these situations, the city is simply recognizing that it has greater latitude to distinguish among various forms of commercial communication when the same distinctions would be impermissible if undertaken with regard to noncommercial speech. Indeed, when adequate alternative channels of communication are readily available so that the message may be freely conveyed through other means, a city arguably is more faithful to the Constitution by treating all noncommercial speech the same than by attempting to impose the same classifications in noncommercial as it has in commercial areas. To undertake the same kind of balancing and content judgment with noncommercial speech that is permitted with commercial speech is far more likely to run afoul of the First Amendment.9 168 Thus, we may, consistent with the First Amendment, hold that a city may—and perhaps must—take an all-or-nothing approach with noncommercial speech yet remain free to adopt selective exceptions for commercial speech, as long as the latter advance legitimate governmental interests. Indeed, it is precisely because "the city does not have the same range of choice in the area of noncommercial speech to evaluate the strength of, or distinguish between, various communicative interests," ante, at 514, that a city should be commended, not condemned, for treating all noncommercial speech the same. 169 (4) 170 The Court today unleashes a novel principle, unnecessary and, indeed, alien to First Amendment doctrine announced in our earlier cases. As Justice STEVENS cogently observes, the plurality, "somewhat ironically, concludes that the ordinance is an unconstitutional abridgment of speech because it does not abridge enough speech." Ante, at 540 (emphasis added). The plurality gravely misconstrues the commercial-noncommercial distinction of earlier cases when it holds that the preferred position of noncommercial speech compels a city to impose the same or greater limits on commercial as on noncommercial speech. The Court today leaves the modern metropolis with a series of Hobson's choices and rejects basic concepts of federalism by denying to every community the important powers reserved to the people and the States by the Constitution. This is indeed "an exercise of raw judicial power," Doe v. Bolton, 410 U.S. 179, 222, 93 S.Ct. 739, 763, 35 L.Ed.2d 201 (1973) (WHITE, J., dissenting), and is far removed from the high purposes of the First Amendment. 171 Justice REHNQUIST, dissenting. 172 I agree substantially with the views expressed in the dissenting opinions of THE CHIEF JUSTICE and Justice STEVENS and make only these two additional observations: (1) In a case where city planning commissions and zoning boards must regularly confront constitutional claims of this sort, it is a genuine misfortune to have the Court's treatment of the subject be a virtual Tower of Babel, from which no definitive principles can be clearly drawn; and (2) I regret even more keenly my contribution to this judicial clangor, but find that none of the views expressed in the other opinions written in the case come close enough to mine to warrant the necessary compromise to obtain a Court opinion. 173 In my view, the aesthetic justification alone is sufficient to sustain a total prohibition of billboards within a community, see Berman v. Parker, 348 U.S. 26, 32-33, 75 S.Ct. 98, 102-103, 99 L.Ed. 27 (1954), regardless of whether the particular community is "a historical community such as Williamsburg' or one as unsightly as the older parts of many of our major metropolitan areas. Such areas should not be prevented from taking steps to correct, as best they may, mistakes of their predecessors. Nor do I believe that the limited exceptions contained in the San Diego ordinance are the types which render this statute unconstitutional. The closest one is the exception permitting billboards during political campaigns, but I would treat this as a virtually self-limiting exception which will have an effect on the aesthetics of the city only during the periods immediately prior to a campaign. As such, it seems to me a reasonable outlet, limited as to time, for the free expression which the First and Fourteenth Amendments were designed to protect. 174 Unlike Justice BRENNAN, I do not think a city should be put to the task of convincing a local judge that the elimination of billboards would have more than a negligible impact on aesthetics. Nothing in my experience on the bench has led me to believe that a judge is in any better position than a city or county commission to make decisions in an area such as aesthetics. Therefore, little can be gained in the area of constitutional law, and much lost in the process of democratic decisionmaking, by allowing individual judges in city after city to second-guess such legislative or administrative determinations. 1 San Diego Ordinance No. 10795 (New Series), enacted March 14, 1972. The general prohibition of the ordinance reads as follows: "B. OFF-PREMISE OUTDOOR ADVERTISING DISPLAY SIGNS PROHIBITED "Only those outdoor advertising display signs, hereinafter referred to as signs in this Division, which are either signs designating the name of the owner or occupant of the premises upon which such signs are placed, or identifying such premises; or signs advertising goods manufactured or produced or services rendered on the premises upon which such signs are placed shall be permitted. The following signs shall be prohibited: "1. Any sign identifying a use, facility or service which is not located on the premises. "2. Any sign identifying a product which is not produced, sold or manufactured on the premises. "3. Any sign which advertises or otherwise directs attention to a product, service or activity, event, person, institution or business which may or may not be identified by a brand name and which occurs or is generally conducted, sold, manufactured, produced or offered elsewhere than on the premises where such sign is located." 2 The California Supreme Court noted that the ordinance as written might be interpreted "to apply to signs of a character very different from commercial billboards—for example, to a picket sign announcing a labor dispute or a small sign placed in one's front yard proclaiming a political or religious message." 26 Cal.3d, at 856, n.2, 164 Cal.Rptr., at 513, n.2, 610 P.2d, at 410, n.2. For this reason the court adopted the narrowing definition (quoted in the text). That definition, however, focused on the structure not the content of the billboard: It excluded "picket signs" but not billboards used to convey a noncommercial message. Cf. State ex rel. Dept. of Transportation v. Pile, 603 P.2d 337 (1979) (Oklahoma Supreme Court construed a state statute prohibiting outdoor advertising signs as not covering noncommercial speech in order to avoid constitutional problems). The court explicitly recognized this continuing burden on noncommercial speech: "The relatively few non-commercial advertisers who would be restricted by the San Diego ordinance . . . possess a great variety of alternative means of communication." 26 Cal.3d, at 869, 164 Cal.Rptr., at 521-522, 610 P.2d, at 418-419. Furthermore, the city continues to contend that the ordinance prohibits the use of billboards to convey a noncommercial message, unless that message falls within one of the specified exemptions contained in the ordinance. Brief for Appellees 6. 3 Section 101.0700(F) provides as follows: "The following types of signs shall be exempt from the provisions of these regulations: "1. Any sign erected and maintained pursuant to and in discharge of any governmental function or required by any law, ordinance or governmental regulation. "2. Bench signs located at designated public transit bus stops; provided, however, that such signs shall have any necessary permits required by Sections 62.0501 and 62.0502 of this Code. "3. Signs being manufactured, transported and/or stored within the City limits of the city of San Diego shall be exempt; provided, however, that such signs are not used, in any manner or form, for purposes of advertising at the place or places of manufacture or storage. "4. Commemorative plaques of recognized historical societies and organizations. "5. Religious symbols, legal holiday decorations and identification emblems of religious orders or historical societies. "6. Signs located within malls, courts, arcades, porches, patios and similar areas where such signs are not visible from any point on the boundary of the premises. "7. Signs designating the premises for sale, rent or lease; provided, however, that any such sign shall conform to all regulations of the particular zone in which it is located. "8. Public service signs limited to the depiction of time, temperature or news; provided, however, that any such sign shall conform to all regulations of the particular zone in which it is located. "9. Signs on vehicles regulated by the City that provide public transportation including, but not limited to, buses and taxicabs. "10. Signs on licensed commercial vehicles, including trailers; provided, however, that such vehicles shall not be utilized as parked or stationary outdoor display signs. "11. Temporary off-premise subdivision directional signs if permitted by a conditional use permit granted by the Zoning Administrator. "12. Temporary political campaign signs, including their supporting structures, which are erected or maintained for no longer than 90 days and which are removed within 10 days after election to which they pertain." 4 This account of appellants' businesses is taken from the joint stipulation of facts entered into by the parties and filed with their cross-motions for summary judgment in the California Superior Court. See Joint Stipulation of Facts Nos. 12-20, App. 44a-45a. 5 Joint Stipulation of Facts No. 24, App. 47a. 6 Suffolk Outdoor Advertising Co. v. Hulse, 439 U.S. 808, 99 S.Ct. 66, 58 L.Ed.2d 101 (1978); Newman Signs, Inc. v. Hjelle, 440 U.S. 901, 99 S.Ct. 1205, 59 L.Ed.2d 449 (1979); Lotze v. Washington, 444 U.S. 921, 100 S.Ct. 257, 62 L.Ed.2d 177 (1979). 7 These cases primarily involved due process and equal protection challenges to municipal regulations directed at billboards. The plaintiffs claimed that their method of advertising was improperly distinguished from other methods that were not similarly regulated and that the ordinances resulted in takings of property without due process. The Court rejected these claims, holding that the regulation of billboards fell within the legitimate police powers of local government. 8 The uniqueness of each medium of expression has been a frequent refrain: See, e. g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448 (1975) ("Each medium of expression . . . must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems"); FCC v. Pacifica Foundation, 438 U.S. 726, 748, 98 S.Ct. 3026, 3040, 57 L.Ed.2d 1073 (1978) ("We have long recognized that each medium of expression presents special First Amendment problems"); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503, 72 S.Ct. 777, 781, 96 L.Ed. 1098 (1952) ("Each method tends to present its own peculiar problems"). 9 For a description of the history of the use of outdoor advertising in this country and the use of billboards within that history, see F. Presbrey, The History and Development of Advertising 497-511 (1929); Tocker, Standardized Outdoor Advertising: History, Economics and Self-Regulation, in Outdoor Advertising: History and Regulation 11, 29 (J. Houck ed. 1969). 10 Joint Stipulation of Facts No. 23, App. 46a-47a. 11 The California Supreme Court suggested that appellants, owners of billboard businesses, did not have standing to raise the argument that billboards may, for some individuals or groups, be the only affordable method of communicating to a large audience. 26 Cal.3d, at 869, n. 14, 164 Cal.Rptr., at 522, n. 14, 610 P.2d, at 419, n. 14. In so holding, the California court seems to have confused the category of "commercial speech" with the category of individuals who have a "commercial interest" in protected speech. We have held that the overbreadth doctrine, under which a party whose own activities are unprotected may challenge a statute by showing that it substantially abridges the First Amendment rights of parties not before the court, will not be applied in cases involving "commercial speech." Bates v. State Bar of Arizona, 433 U.S. 350, 381, 97 S.Ct. 2691, 2707, 53 L.Ed.2d 810 (1977). However, we have never held that one with a "commercial interest" in speech also cannot challenge the facial validity of a statute on the grounds of its substantial infringement of the First Amendment interests of others. Were it otherwise, newspapers, radio stations, movie theaters and producers—often those with the highest interest and the largest stake in a First Amendment controversy—would not be able to challenge government limitations on speech as substantially overbroad. As the opinion in Bates observed, id., at 363, 97 S.Ct., at 2698-2699: "[O]ur cases long have protected speech even though it is in the form of a paid advertisement, Buckley v. Valeo, 424 U.S. 1 [96 S.Ct. 612, 46 L.Ed.2d 659] (1976); New York Times Co. v. Sullivan, 376 U.S. 254 [84 S.Ct. 710, 11 L.Ed.2d 686] (1964); in a form that is sold for profit, Smith v. California, 361 U.S. 147 [80 S.Ct. 215, 4 L.Ed.2d 205] (1959); Murdock v. Pennsylvania, 319 U.S. 105 [63 S.Ct. 870, 87 L.Ed. 1292] (1943); or in the form of a solicitation to pay or contribute money, New York Times Co. v. Sullivan, supra; Cantwell v. Connecticut, 310 U.S. 296 [60 S.Ct. 900, 84 L.Ed. 1213] (1940). If commercial speech is to be distinguished, it 'must be distinguished by its content.' [Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346] 425 U.S., at 761 [96 S.Ct., at 1825]." See also Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 761, 96 S.Ct. 1817, 1825, 48 L.Ed.2d 346 (1976). 12 Justice STEWART'S comments in Virginia Pharmacy Board are worth quoting here: "The Court's determination that commercial advertising of the kind at issue here is not 'wholly outside the protection of' the First Amendment indicates by its very phrasing that there are important differences between commercial price and product advertising, on the one hand, and ideological communication on the other. Ideological expression, be it oral, literary, pictorial, or theatrical, is integrally related to the exposition of thought thought that may shape our concepts of the whole universe of man. Although such expression may convey factual information relevant to social and individual decisionmaking, it is protected by the Constitution, whether or not it contains factual representations and even if it includes inaccurate assertions of fact. . . . "Commercial price and product advertising differs markedly from ideological expression because it is confined to the promotion of specific goods or services. The First Amendment protects the advertisement because of the 'information of potential interest and value' conveyed, rather than because of any direct contribution to the interchange of ideas." Id., at 779-780, 96 S.Ct., at 1834-1835 (references and footnotes omitted). 13 The California Supreme Court had held in Varney & Green v. Williams, 155 Cal. 318, 100 P. 867 (1909), that a municipal ordinance prohibiting all advertising billboards purely for esthetic reasons was an unconstitutional exercise of municipal police power. The court specifically overruled Varney in upholding the San Diego ordinance at issue here. California's current position is in accord with that of most other jurisdictions. See n. 15, infra. 14 See E. B. Elliott Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141, 1152 (CA 5 1970); Markham Advertising Co. v. Washington, 73 Wash.2d 405, 420-421, 439 P.2d 248, 258 (1968); New York State Thruway Authority v. Ashley Motor Court, Inc., 10 N.Y.2d 151, 155-156, 218 N.Y.S.2d 640, 642, 176 N.E.2d 566, 568 (1961); Ghaster Properties, Inc. v. Preston, 176 Ohio St. 425, 438, 200 N.E.2d 328, 337 (1964); Newman Signs, Inc. v. Hjelle, 268 N.W.2d 741, 757 (N.D.1978); Lubbock Poster Co. v. City of Lubbock, 569 S.W.2d 935, 939 (Tex.Civ.App.1978); State v. Lotze, 92 Wash.2d 52, 59, 593 P.2d 811, 814 (1979); Inhabitants, Town of Boothbay v. National Advertising Co., 347 A.2d 419, 422 (Me.1975); Stuckey's Stores, Inc. v. O'Cheskey, 93 N.M. 312, 321, 600 P.2d 258, 267 (1979); In re Opinion of the Justices, 103 N.H. 268, 270, 169 A.2d 762, 764 (1961); General Outdoor Advertising Co. v. Department of Public Works, 289 Mass. 149, 180-181, 193 N.E. 799, 813-814 (1935). But see John Donnelly & Sons v. Campbell, 639 F.2d 6, 11 (C.A.1 1980); State ex rel. Dept. of Transportation v. Pile, 603 P.2d, at 343; Metromedia, Inc. v. City of Des Plaines, 26 Ill.App.3d 942, 946, 326 N.E.2d 59, 62 (1975). 15 See John Donnelly & Sons v. Campbell, supra, at 11-12; E. B. Elliott Advertising Co. v. Metropolitan Dade County, supra, at 1152; Newman Signs, Inc. v. Hjelle, supra, at 757; Markham Advertising Co. v. Washington, supra, at 422-423, 439 P.2d, at 259; Stuckey's Stores, Inc. v. O'Cheskey, supra, at 321, 600 P.2d, at 267; Suffolk Outdoor Advertising Co. v. Hulse, 43 N.Y.2d 483, 489, 402 N.Y.S.2d 368, 370, 373 N.E.2d 263, 265 (1977); John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., 369 Mass. 206, 219, 339 N.E.2d 709, 717 (1975); Cromwell v. Ferrier, 19 N.Y.2d 263, 269, 279 N.Y.S.2d 22, 26, 225 N.E.2d 749, 753 (1967); State v. Diamond Motors, Inc., 50 Haw. 33, 35-36, 429 P.2d 825, 827 (1967); United Advertising Corp. v. Metuchen, 42 N.J. 1, 6, 198 A.2d 447, 449 (1964); In re Opinion of the Justices, supra, at 270-271, 169 A.2d, at 764. But see State ex rel. Dept. of Transportation v. Pile, supra, at 342; Sunad, Inc. v. Sarasota, 122 So.2d 611, 614-615 (Fla.1960). 16 The federal Highway Beautification Act of 1965, Pub.L. 89-285, 79 Stat. 1028, as amended, 23 U.S.C. § 131 (1976 ed. and Supp.III), requires that States eliminate billboards from areas adjacent to certain highways constructed with federal funds. The Federal Government, also prohibits billboards on federal lands. 43 CFR § 2921.0-6(a) (1980). Three States have enacted statewide bans on billboards. Maine, Me.Rev.Stat.Ann., Tit. 23, § 1901 et seq. (1980); Hawaii, Haw.Rev.Stat. § 264-71 et seq., § 445-111 et seq. (1976); Vermont, Vt.Stat.Ann., Tit. 10, § 488 et seq. (1973). 17 See Howard v. State Department of Highways of Colorado, 478 F.2d 581 (C.A.10 1973); John Donnelly & Sons v. Campbell, supra; John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., supra; Donnelly Advertising Corp. v. City of Baltimore, 279 Md. 660, 668, 370 A.2d 1127, 1132 (1977); Modjeska Sign Studios, Inc. v. Berle, 43 N.Y.2d 468, 402 N.Y.S.2d 359, 373 N.E.2d 255 (1977); Suffolk Outdoor Advertising Co. v. Hulse, supra; Ghaster Properties, Inc. v. Preston, supra; Newman Signs, Inc. v. Hjelle, supra; United Advertising Corp. v. Borough of Raritan, 11 N.J. 144, 93 A.2d 362 (1952) (Brennan, J.); United Advertising Corp. v. Metuchen, supra; Stuckey's Stores, Inc. v. O'Cheskey, supra. 18 In John Donnelly & Sons v. Campbell, 639 F.2d 6 (1980), the Court of Appeals for the First Circuit considered a statewide limitation on billboards, which similarly afforded a greater degree of protection to commercial than to noncommercial messages. That court took a position very similar to the one that we take today: it sustained the regulation insofar as it restricted commercial advertising, but held unconstitutional its more intrusive restrictions on noncommercial speech. The court stated: "The law thus impacts more heavily on ideological than on commercial speech—a peculiar inversion of First Amendment values. The statute . . . provides greater restrictions—and fewer alternatives, the other side of the coin—for ideological than for commercial speech. . . . In short, the statute's impositions are both legally and practically the most burdensome on ideological speech, where they should be the least." 639 F.2d, at 15-16. Other courts, however, have failed to give adequate weight to the distinction between commercial and noncommercial speech and to the higher level of protection to be afforded the latter. See Donnelly Advertising Corp. v. City of Baltimore, 279 Md. 660, 370 A.2d 1127 (1977); State v. Lotze, 92 Wash.2d 52, 593 P.2d 811 (1979). To the extent that this decision is not consistent with the conclusion reached in Lotze, we overruled our prior summary approval of that decision in 444 U.S. 921, 100 S.Ct. 257, 62 L.Ed.2d 177 (1979). 19 In this sense, this case presents the opposite situation from that in Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974), and Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976). In both of those cases a government agency had chosen to prohibit from a certain forum speech relating to political campaigns, while other kinds of speech were permitted. In both cases this Court upheld the prohibition, but both cases turned on unique fact situations involving government-created forums and have no application here. 20 Because a total prohibition of outdoor advertising is not before us, we do not indicate whether such a ban would be consistent with the First Amendment. But see Schad v. Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981), on the constitutional problems created by a total prohibition of a particular expressive forum, live entertainment in that case. Despite Justice STEVENS' insistence to the contrary, post, at 540, 541, and 548, n. 16, we do not imply that the ordinance is unconstitutional because it "does not abridge enough speech." Similarly, we need not reach any decision in this case as to the constitutionality of the federal Highway Beautification Act of 1965. That Act, like the San Diego ordinance, permits on-site commercial billboards in areas in which it does not permit billboards with noncommercial messages. 23 U.S.C. § 131(c) (1976 ed., Supp.III). However, unlike the San Diego ordinance, which prohibits billboards conveying noncommercial messages throughout the city, the federal law does not contain a total prohibition of such billboards in areas adjacent to the interstate and primary highway systems. As far as the Federal Government is concerned, such billboards are permitted adjacent to the highways in areas zoned industrial or commercial under state law or in unzoned commercial or industrial areas. 23 U.S.C. § 131(d). Regulation of billboards in those areas is left primarily to the States. For this reason, the decision today does not determine the constitutionality of the federal statute. Whether, in fact, the distinction is constitutionally significant can only be determined on the basis of a record establishing the actual effect of the Act on billboards conveying noncommercial messages. 21 See Joint Stipulation of Facts No. 28, App. 48a. 22 Justice STEVENS' suggested standard seems to go even further than THE CHIEF JUSTICE in ignoring the private interests protected by the First Amendment. He suggests that regulation of speech is permissible so long as it is not biased in favor of a particular position and leaves open "ample" means of communication. Post, at 552. Nowhere does he suggest that the strength or weakness of the government's interests is a factor in the analysis. 23 THE CHIEF JUSTICE correctly notes that traditional labels should not be substituted for analysis and, therefore, he correctly rejects any simple classification of the San Diego ordinance as either a "prohibition" or a "time, place, and manner restriction." These "labels" or "categories," however, have played an important role in this Court's analysis of First Amendment problems in the past. The standard THE CHIEF JUSTICE himself adopts appears to be based almost exclusively on prior discussions of time, place, and manner restrictions. See Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981); Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 535, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980); California v. LaRue, 409 U.S. 109, 117, n. 4, 93 S.Ct. 390, 396, n. 4, 34 L.Ed.2d 342 (1972); Adderley v. Florida, 385 U.S. 39 (1966); Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949). But this Court has never held that the less strict standard of review applied to time, place, and manner restrictions is appropriately used in every First Amendment case, or that it is the most that the First Amendment requires of government legislation which infringes on protected speech. If this were the case, there would be no need for the detailed inquiry this Court consistently pursues in order to answer the question of whether a challenged restriction is in fact a time, place, and manner restriction—the same standard of review would apply regardless of the outcome of that inquiry. As we demonstrated above, the San Diego ordinance is not such a restriction and there is, therefore, no excuse for applying a lower standard of First Amendment review to that ordinance. 24 Nor has this Court ever accepted the view that it must defer to a legislative judgment that a particular medium of communication is "offensive" and "intrusive," merely because "other means [of communication] are available." Post, at 561. 25 Appellants contend that the ordinance will effectively eliminate their businesses and that this violates the Due Process Clause. We do not know, however, what kind of ordinance, if any, San Diego will seek to enforce in place of that which we invalidate today. In any case, any question of unconstitutional "takings" aside, the Due Process Clause does not afford a greater degree of protection to appellants' business than does the First Amendment. Since we hold that the First Amendment interests in commercial speech are not sufficient to prevent the city from prohibiting offsite commercial advertisements, no different result should be reached under the Due Process Clause. 26 Although the ordinance contains a severability clause, determining the meaning and application of that clause is properly the responsibility of the state courts. See Dombrowski v. Pfister, 380 U.S. 479, 497, 85 S.Ct. 1116, 1126, 14 L.Ed.2d 22 (1965) ("The record suffices . . . to permit this Court to hold that, without the benefit of limiting construction, the statutory provisions on which the indictments are founded are void on their face; until an acceptable limiting construction is obtained, the provisions cannot be applied"); Liggett Co. v. Lee, 288 U.S. 517, 541, 53 S.Ct. 481, 487, 77 L.Ed. 929 (1933) ("The operation of this [severability clause] consequent on our decision is a matter of state law. While we have jurisdiction of the issue, we deem it appropriate that we should leave the determination of the question to the state court"); Dorchy v. Kansas, 264 U.S. 286, 291, 44 S.Ct. 323, 325, 68 L.Ed. 686 ("In cases coming from the state courts, this Court, in the absence of a controlling state decision may, in passing upon the claim under the federal law, decide, also, the question of severability. But it is not obliged to do so. The situation may be such as to make it appropriate to leave the determination of the question to the state court"). This rule is reflected in the different approaches this Court has taken to statutory construction of federal and state statutes infringing on protected speech. Compare United States v. Thirty-seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971), with Freedman v. Maryland, 380 U.S. 51, 60, 85 S.Ct. 734, 739, 13 L.Ed.2d 649 (1965). Since our judgment is based essentially on the inclusion of noncommercial speech within the prohibitions of the ordinance, the California courts may sustain the ordinance by limiting its reach to commercial speech, assuming the ordinance is susceptible to this treatment. 1 According to Joint Stipulation of Facts No. 25 entered into by the parties for purposes of cross-motions for summary judgment: "Outdoor advertising is presented in two basic standardized forms. A 'poster panel' is a 12-foot by 24-foot sign on which a pre-printed message is posted, in sheets. A 'painted bulletin' is generally a 14-foot by 48-foot sign which contains a hand painted message. The message will remain in one place for a period of time, usually a month, and will then be disassembled and replaced by another message while the first message is moved to another sign. In this way, the same hand painted message will be moved throughout a metropolitan area over a six-month or twelve-month period." App. 47a. The ordinance does not apply to such signs as "a picket sign announcing a labor dispute or a small sign placed in one's front yard proclaiming a political or religious message." 26 Cal.3d 848, 856, n. 2, 164 Cal.Rptr. 510, 513, 610 P.2d 407, 410, n. 2 (1980). 2 I will sometimes refer to billboards containing commercial speech messages as "commercial billboards," and billboards containing noncommercial speech messages as "noncommercial billboards." 3 Additional exceptions include signs manufactured, transported, or stored in San Diego so long as they are not used for advertising purposes; signs located within areas where such signs are not visible from the boundary of the premises; signs on vehicles such as buses and taxicabs; signs on other licensed commercial vehicles; and temporary off-premises subdivision directional signs. App. to Juris. Statement 111a-112a. 4 Perusal of the photographs of billboards included in the appendix to the jurisdictional statement filed in this Court reveals the wide range of noncommercial messages communicated through billboards, including the following: "Welcome to San Diego[:] Home of 1,100 Underpaid Cops"; "Support San Diego's No-Growth Policy[:] Spend Your Money in Los Angeles!"; "Voluntary Integration. Better Education By Choice"; "Support America's First Environment Strike. Don't Buy Shell!"; and "Get US out! of the United Nations." 5 Outdoor advertising traditionally has been classified into two categories: "on-premises" and "off-premises." One commentator describes: "The on-premise classification of outdoor advertising is referred to as the sign industry, in that signs are custom-made and are manufactured by a sign contractor on premises not owned, leased or controlled by the sign contractor or his agent. Such signs are used primarily for the purpose of identifying a business, its products or its services at the point of manufacture, distribution or sale, hence on-premise. * * * * * "Off-premise advertising is an advertising service for others which erects and maintains outdoor advertising displays on premises owned, leased or controlled by the producer of the advertising service." Tocker, Standardized Outdoor Advertising: History, Economics and Self-Regulation, in Outdoor Advertising: History and Regulation 11, 15, 18 (J. Houck ed. 1969). 6 Different factors come into play when the challenged legislation is simply a time, place, or manner regulation rather than a total ban of a particular medium of expression. 7 Not 1 of the 11 cases cited by the plurality in its footnote 14 stands for the proposition that reviewing courts have determined that "billboards are real and substantial hazards to traffic safety." These 11 cases merely apply the minimal scrutiny rational relationship test and the presumption of legislative validity to hold that it would not be unreasonable or inconceivable for a legislature or city government to conclude that billboards are traffic hazards. For example, in New York State Thruway Authority v. Ashley Motor Court, Inc., 10 N.Y.2d 151, 156, 218 N.Y.S.2d 640, 642, 176 N.E.2d 566, 568 (1961), the court held: "There are some, perhaps, who may dispute whether billboards and other advertising devices interfere with safe driving and constitute a traffic hazard . . ., but mere disagreement may not cast doubt on the statute's validity. Matters such as these are reserved for legislative judgment, and the legislative determination, here expressly announced, will not be disturbed unless manifestly unreasonable." Only 5 of the 11 cases even discuss the First Amendment. See Stuckey's Stores, Inc. v. O'Cheskey, 93 N.M. 312, 600 P.2d 258 (1979), appeal dism'd, 446 U.S. 930, 100 S.Ct. 2145, 64 L.Ed.2d 783 (1980); State v. Lotze, 92 Wash.2d 52, 593 P.2d 811, appeal dism'd, 444 U.S. 921, 100 S.Ct. 257, 62 L.Ed.2d 177 (1979); Lubbock Poster Co. v. City of Lubbock, 569 S.W.2d 935 (Tex.Civ.App.1978), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979); Newman Signs, Inc. v. Hjelle, 268 N.W.2d 741 (N.D.1978), appeal dism'd, 440 U.S. 901, 99 S.Ct. 1205, 59 L.Ed.2d 449 (1979); Markham Advertising Co. v. Washington, 73 Wash.2d 405, 439 P.2d 248 (1968), appeal dism'd, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 512 (1969). Therefore, when the plurality states that "[t]here is nothing here to suggest that these judgments are unreasonable," ante, at 509, it is really saying that there is nothing unreasonable about other courts finding that there is nothing unreasonable about a legislative judgment. This is hardly a sufficient finding under the heightened scrutiny appropriate for this case. It is not surprising that, of the three cases cited in the plurality's footnote 14 that declined to accept the traffic safety rationale, two were decided under heightened scrutiny. There is another reason why I would hesitate to accept the purported judgment of lawmakers that billboards are traffic hazards. Until recently, it was thought that aesthetics alone could never be a sufficient justification to support an exercise of the police power, and that aesthetics would have to be accompanied by a more traditional health, safety, morals, or welfare justification. Indeed, the California Supreme Court decision below explicitly repudiated the holding of a prior case, Varney & Green v. Williams, 155 Cal. 318, 100 P. 867 (1909), that held aesthetics to be an insufficient predicate for police power action. 26 Cal.3d, at 860-861, 164 Cal.Rptr., at 516, 610 P.2d, at 413. Therefore, in the case of billboard regulations, many cities may have used the justification of traffic safety in order to sustain ordinances where their true motivation was aesthetics. As the Hawaii Supreme Court com- mented in State v. Diamond Motors, Inc., 50 Haw. 33, 36, 429 P.2d 825, 827 (1967), in upholding a comprehensive sign ordinance: "[The City's] answering brief admittedly 'does not extend to supporting the proposition that aesthetics alone is a proper objective for the exercise of the City's police power.' Perhaps, the 'weight of authority' in other jurisdictions persuaded the City to present the more traditional arguments because it felt that it was safer to do so. However, the brief of The Outdoor Circle as amicus curiae presents, as we think, a more modern and forthright position . . . . ". . . We are mindful of the reasoning of most courts that have upheld the validity of ordinances regulating outdoor advertising and of the need felt by them to find some basis in economics, health, safety, or even morality. . . . We do not feel so constrained." (Footnote omitted.) See also C. Haar, Land-Use Planning 403-408 (3d ed. 1976). 8 Judge Pettine comments on Maine's statewide ban: "Even assuming that a total ban on billboards will produce some aesthetic gain in all highway areas, the quantum of improvement will obviously vary with the site involved. In undeveloped areas, it may very well be that signs and billboards are the principal eyesores; here, the benefit will be great, for their removal would return the landscape to its pristine beauty. In industrial and commercial areas, however, signs and billboards are but one of countless types of manmade intrusions on the natural landscape. Without denying that some perceptible change for the better would occur even here, I question whether the margin of improvement obtained in these areas can really justify the state's decision to virtually eradicate commercial speech by sign and billboard." 639 F.2d, at 23. 9 For example, Williamsburg, Va., requires that any building newly constructed or altered in the city "shall have such design and character as not to detract from the value and general harmony of design of buildings already existing in the surrounding area in which the building is located or is to be located." Williamsburg City Code § 30-80 (1979). 10 Appellants argue that the exceptions to the total ban, such as for on-premises signs, undercut the very goals of traffic safety and aesthetics that the city claims as paramount, and therefore invalidate the whole ordinance. Brief for Appellants 42-43. But obviously, a city can have special goals the accomplishment of which would conflict with the overall goals addressed by the total billboard ban. It would make little sense to say that a city has an all-or-nothing proposition—either ban all billboards or none at all. Because I conclude that the San Diego ordinance impermissibly infringes First Amendment rights in that the city has failed to justify the ordinance sufficiently in light of substantial governmental interests, I need not decide, as the plurality does in Part V of its opinion, whether the exceptions to the total ban constitute independent grounds for invalidating the regulation. However, if a city can justify a total ban, I would allow an exception only if it directly furthers an interest that is at least as important as the interest underlying the total ban, if the exception is no broader than necessary to advance the special goal, and if the exception is narrowly drawn so as to impinge as little as possible on the overall goal. To the extent that exceptions rely on content-based distinctions, they must be scrutinized with special care. The San Diego billboard ordinance is a classic example of conflicting interests. In its section entitled "Purpose and Intent," the ordinance states: "It is the purpose of these regulations to eliminate excessive and confusing sign displays which do not relate to the premises on which they are located; to eliminate hazards to pedestrians and motorists brought about by distracting sign displays; to ensure that signing is used as identification and not as advertisement; and to preserve and improve the appearance of the City as a place in which to live and work. "It is the intent of these regulations to protect an important aspect of the economic base of the City by preventing the destruction of the natural beauty and environment of the City, which is instrumental in attracting nonresidents who come to visit, trade, vacation or attend conventions; to safeguard and enhance property values; to protect public and private investment in buildings and open spaces; and to protect the public health, safety and general welfare." App. to Juris. Statement 106a-107a. To achieve these purposes, the ordinance effects a general ban on billboards, but with an exception for on-premises identification signs. Of course, each on-premises sign detracts from achieving the city's goals of traffic safety and aesthetics, but contributes to the alternative goal of identification. In this way San Diego seeks to achieve the best compromise between the goals of traffic safety and aesthetics on the one hand, and convenience for the public on the other. San Diego has shown itself fully capable of drafting narrow exceptions to the general ban. For example, the city has promulgated special regulations for sign control in the La Jolla sign control district: "The Sign Control District is intended to maintain the unique, distinctive character and economic value of the La Jolla area in the City of San Diego and to regulate advertising of commercial enterprises . . .. * * * * * "One sign shall be permitted on each lot or parcel of real estate, . . . provided . . . : * * * * * "Such sign shall not exceed 5" x 8" in size and no part of such sign shall extend more than four feet above the surface of the ground upon which it is erected." Id., at 113a-115a. My views in this case make it unnecessary to decide the permissibility of the on-premise exception, but it is not inconceivable that San Diego could incorporate an exception to its overall ban to serve the identification interest without violating the Constitution. I also do not decide the validity of the other exceptions to the San Diego regulation. 11 Likewise, I express no view on the constitutionality of the Highway Beautification Act of 1965, 23 U.S.C. § 131 (1976 ed. and Supp.III). 12 The plurality comments that "the city could reasonably conclude that a commercial enterprise—as well as the interested public—has a stronger interest in identifying its place of business and advertising the products or services available there than it has in using or leasing its available space for the purpose of advertising commercial enterprises located elsewhere." Ante, at 512 (emphasis added). But Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), demands more than a rational basis for preferring one kind of commercial speech over another. Moreover, this case does not present legislation implicating the "common-sense differences" between commercial and noncommercial speech that " 'suggest that a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired.' " Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 98, 97 S.Ct. 1614, 1621, 52 L.Ed.2d 155 (1977), quoting Virginia Pharmacy Board v. Virginia Citizens Consumers Council, Inc., 425 U.S. 748, 771-772, n.24, 96 S.Ct. 1817, 1830-1831, 48 L.Ed.2d 346 (1976). There is no suggestion that San Diego's billboard ordinance is designed to deal with "false or misleading signs." Linmark Associates, Inc. v. Willingboro, supra, at 98, 97 S.Ct., at 1621. 13 Of course, as a matter of marketplace economics, such an ordinance may prove the undoing of all billboard advertising, both commercial and noncommercial. It may well be that no company would be able to make a profit maintaining billboards used solely for noncommercial messages. Although the record does not indicate how much of appellants' income is produced by noncommercial communicators, it would not be unreasonable to assume that the bulk of their customers advertise commercial messages. Therefore, noncommercial users may represent such a small percentage of the billboard business that it would be impossible to stay in business based upon their patronage alone. Therefore, the plurality's prescription may represent a de facto ban on both commercial and noncommercial billboards. This is another reason to analyze this case as a "total ban" case. 14 These are not mere hypotheticals that can never occur. The Oil, Chemical and Atomic Workers International Union, AFL-CIO, actually placed a billboard advertisement stating: "Support America's First Environment Strike. Don't Buy Shell!" App. to Juris. Statement; see n. 4, supra. What if Exxon had placed the advertisement? Could Shell respond in kind? 1 The parties so stipulated. See Joint Stipulation of Facts No. 2, App. 42a, quoted in n. 8, infra. 2 That is the effect of both Justice WHITE's reaction to the exceptions from a total ban and Justice BRENNAN's concern about the city's attempt to differentiate between commercial and noncommercial messages, although both of their conclusions purportedly rest on the character of the abridgment rather than simply its quantity. 3 The ordinance does not define the term "outdoor advertising display signs." The California Supreme Court adopted the following definition to avoid overbreadth problems: " '[A] rigidly assembled sign, display, or device permanently affixed to the ground or permanently attached to a building or other inherently permanent structure constituting, or used for the display of, a commercial or other advertisement to the public.' " 26 Cal.3d 848, 856, n. 2, 164 Cal.Rptr. 510, 513, n. 2, 610 P.2d 407, 410, n. 2 (1980). 4 As a practical matter, the plurality may well be approving a total ban on billboards, or at least on offsite billboards. For it seems unlikely that the outdoor advertising industry will be able to survive if its only customers are those persons and organizations who wish to use billboards to convey noncommercial messages. See ante, at 536, n. 13 (BRENNAN, J., concurring in judgment). 5 The parties' stipulation described these differences: "There is a difference between the outdoor advertising business and 'on-site' or business signs. On-site signs advertise businesses, goods or services available on the property on which the sign is located. On the other hand, the outdoor advertising businesses lease real property and erect signs thereon which are made available to national and local advertisers for commercial, political and social messages. Outdoor advertising is different from on-site advertising in that: "(a) The outdoor advertising sign seldom advertises goods or services sold or made available on the premises on which the sign is located. "(b) The outdoor advertising sign seldom advertises products or services sold or made available by the owner of the sign. "(c) The outdoor advertising sign is, generally speaking, made available to 'all-comers', in a fashion similar to newspaper or broadcasting advertising. It is a forum for the communication of messages to the public. "(d) The copy of the outdoor advertising sign changes, usually monthly. For example, a particular sign may advertise a local savings and loan association one month, a candidate for mayor the next month, the San Diego Zoo the third month, a new car the fourth month, and a union grievance the fifth month." Joint Stipulation of Facts No. 22, App. 45a-46a. The importance of the distinction between the outdoor advertising business in which appellants are engaged and the use of "onsite" signs is supported by the fact that the respective kinds of signs are produced by different manufacturers. See Justice BRENNAN's opinion concurring in the judgment, ante, at 526, n. 5. 6 The physical characteristics of outdoor advertising signs were established by stipulation: "Outdoor advertising is presented in two basic standardized forms. A 'poster panel' is a 12-foot by 24-foot sign on which a pre-printed message is posted, in sheets. A 'painted bulletin' is generally a 14-foot by 48-foot sign which contains a hand painted message." Joint Stipulation of Facts No. 25, App. 47a. 7 The California Supreme Court's narrowing construction of the ordinance, see n. 3, supra, makes it applicable only to rigidly assembled permanent signs. For that reason, the plurality is able to state that it deals only "with the law of billboards." Ante, at 501. 8 The parties stipulated to the economic effects of the ordinance: "If enforced as written, Ordinance No. 10795 will eliminate the outdoor advertising business in the City of San Diego. * * * * * "Plaintiffs' outdoor advertising displays produce substantial gross annual income. * * * * * "Enforcement of Ordinance No. 10795 will prevent plaintiffs from engaging in the outdoor advertising business in the City of San Diego and will cause plaintiffs to suffer substantial monetary losses." Joint Stipulation of Facts Nos. 2, 26, 32, App. 42a, 48a, 49a. 9 By stipulation, the parties agreed that the San Diego ordinance will limit the ability of some billboard users to communicate their messages to the public: "Outdoor advertising increases the sales of products and produces numerous direct and indirect benefits to the public. Valuable commercial, political and social information is communicated to the public through the use of outdoor advertising. Many businesses and politicians and other persons rely upon outdoor advertising because other forms of advertising are insufficient, inappropriate and prohibitively expensive." Joint Stipulation of Facts No. 28, App. 48a. 10 Nor is there any evidence that the total elimination of the outdoor advertising business will have any economic effect on manufacturers of onsite signs. See Justice BRENNAN's opinion concurring in the judgment, ante, at 526, n. 5. 11 Appellants each own between 500 and 800 outdoor advertising displays in San Diego. See Joint Stipulation of Facts No. 13, App. 44a. All of their signs are located in areas zoned for commercial and industrial uses. Joint Stipulation of Facts No. 20, App. 45a. The California Supreme Court's narrowing construction of the ordinance was specifically intended to exclude from the coverage of the ordinance signs very different from commercial billboards, such as "a picket sign announcing a labor dispute or a small sign placed in one's front yard proclaiming a political or religious message." 26 Cal.3d, at 856, n. 2, 164 Cal.Rptr., at 513, n. 2, 610 P.2d, at 410, n. 2. 12 See, e. g., McGowan v. Maryland, 366 U.S. 420, 429, 81 S.Ct. 1101, 1106, 6 L.Ed.2d 393: "[T]he general rule is that 'a litigant may only assert his own constitutional rights or immunities' . . . ." 13 See, e. g., Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22; Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408; Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629; Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162. 14 Even the dissenting Justices in Broadrick, although they disagreed with the Court's refusal to apply the overbreadth doctrine in that case, acknowledged that an overbreadth challenge should not be entertained in every case raising First Amendment issues: "We have never held that a statute should be held invalid on its face merely because it is possible to conceive of a single impermissible application, and in that sense a requirement of substantial overbreadth is already implicit in the doctrine." 413 U.S., at 630, 93 S.Ct., at 2925 (BRENNAN, J., joined by STEWART and MARSHALL, JJ., dissenting). 15 Indeed, the parties stipulated that onsite advertising differs in significant respects from the outdoor advertising business in which appellants are engaged. See n.5, supra. 16 Ironically, today the plurality invalidates this ordinance—not because it is too broad—but rather because it is not broad enough. It assumes for the purpose of decision that a repeal of all exceptions, including the exception for onsite advertising, would cure the defects it finds in the present ordinance. See ante, at 515, n.20. However, because neither the appellants nor the onsite advertisers would derive any benefits from a repeal of the exception for onsite commercial signs, the plurality's reliance on the overbreadth doctrine to support vicarious standing in this case is curious indeed. 17 Compare Chicago Board of Trade v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683 with United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700. 18 Because the record makes it clear that the business of operating billboards has prospered in San Diego, it is obvious that this medium is more effective than others for some forms of communication. See n.8, supra. 19 See nn.8, 9, supra. 20 See generally A. Read Classic American Graffiti (1977); R. Reisner, Graffiti: Two Thousand Years of Wall Writing (1971); V. Pritchard, English Medieval Graffiti (1967). 21 In his opinion announcing the judgment of the Court, Justice Reed wrote: "That more people may be more easily and cheaply reached by sound trucks, perhaps borrowed without cost from some zealous supporter, is not enough to call forth constitutional protection for what those charged with public welfare reasonably think is a nuisance when easy means of publicity are open." 336 U.S., at 88-89, 69 S.Ct., at 454. 22 That excerpt from Justice Black's dissent is not, of course, sufficient evidence to tell us whether or not he would have upheld a city's total ban on billboards. It does seem clear, however, that he did not adopt the absolute position that any reduction in the quantity of effective communication is categorically prohibited by the First Amendment. The full paragraph in which the quoted phrase appears reads: "I am aware that the 'blare' of this new method of carrying ideas is susceptible of abuse and may under certain circumstances constitute an intolerable nuisance. But ordinances can be drawn which adequately protect a community from unreasonable use of public speaking devices without absolutely denying to the community's citizens all information that may be disseminated or received through this new avenue for trade in ideas. I would agree without reservation to the sentiment that 'unrestrained use throughout a municipality of all sound amplifying devices would be intolerable.' And of course cities may restrict or absolutely ban the use of amplifiers on busy streets in the business area. A city ordinance that reasonably restricts the volume of sound, or the hours during which an amplifer may be used, does not, in my mind, infringe the constitutionality protected area of free speech. It is because this ordinance does none of these things, but is instead an absolute prohibition of all uses of an amplifier on any streets of Trenton at any time that I must dissent." Id., at 104, 69 S.Ct., at 462. 23 Our decisions invalidating ordinances prohibiting or regulating door-to-door solicitation and leafletting are not to the contrary. In those cases, the state interests the ordinances purported to serve—for instance, the prevention of littering or fraud—were only indirectly furthered by the regulation of communicative activity. See, e. g., Schneider v. State, 308 U.S. 147, 162, 164, 60 S.Ct. 146, 151, 152, 84 L.Ed. 155; Martin v. City of Struthers, 319 U.S. 141, 147-148, 63 S.Ct. 862, 865, 87 L.Ed. 1313; Cantwell v. Connecticut, 310 U.S. 296, 306, 60 S.Ct. 900, 904, 84 L.Ed. 1213; Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 636-639, 100 S.Ct. 826, 834-836, 63 L.Ed.2d 73. In many of the cases the ordinances provided for a licensing scheme, rather than a blanket prohibition. The discretion thus placed in the hands of municipal officials was found constitutionally offensive because of the risk of censorship. See, e. g., Schneider, supra, at 163-164, 60 S.Ct., at 151-152; Hague v. CIO, 307 U.S. 496, 516, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (opinion of Roberts, J.); Lovell v. Griffin, 303 U.S. 444, 451-452, 58 S.Ct. 666, 668-669, 82 L.Ed. 949; Cantwell, supra, at 305-307, 60 S.Ct., at 904. In addition, because many of these cases involved the solicitation efforts of the Jehovah's Witnesses, see, e. g., Lovell, supra, at 448, 58 S.Ct., at 667; Jamison v. Texas, 318 U.S. 413, 413-414, 63 S.Ct. 669, 670, 87 L.Ed. 869; Schneider, supra, at 158, 60 S.Ct., at 149; Martin, supra, at 142, 63 S.Ct., at 862; Cantwell, supra, at 300, 60 S.Ct., at 901, the Court was properly sensitive to the risk that the ordinances could be used to suppress unpopular viewpoints. In this case, as the plurality acknowledges, the ban on billboards directly serves, and indeed is necessary to further, the city's legitimate interests in traffic safety and aesthetics. See ante, at 507-510, 511. San Diego's ordinance places no discretion in any municipal officials, and there is no reason to suspect that the ordinance was designed or is being applied to suppress unpopular viewpoints. 24 It seems fair to infer that Justice Douglas, who cast the deciding vote in Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770, would have approved of a prohibition on billboards. See his opinion concurring in the judgment, id., at 306-308, 94 S.Ct., at 2718-2719. After drawing an analogy between billboards and advertising on municipal vehicles, Justice Douglas noted: "In my view the right of the commuters to be free from forced intrusions on their privacy precludes the city from transforming its vehicles of public transportation into forums for the dissemination of ideas upon this captive audience." Id., at 307, 94 S.Ct., at 2719. 25 Most of the ordinance's 12 exceptions, quoted ante, at 495, n. 3 (opinion of WHITE, J.), are not based on the subject matter of speech. Several exceptions can be disregarded because they pertain to signs that are not within the coverage of the ordinance at any rate, in light of the California Supreme Court's limiting construction. See n. 3, supra. The exceptions relating to vehicular signs fall into this category, see §§ 101.0700(F)(9), (10), as do the exceptions for signs in transit and storage, see § 101.0700(F)(3), and for temporary subdivision directional signs, see § 101.0700(F)(11). The exception for "for sale" signs also appears to describe signs not covered by the ordinance since such signs ordinarily are not "permanently affixed to the ground or permanently attached to a building." Of the remaining exceptions, two are based on the location, rather than content, of the signs, see §§ 101.0700(F)(2), (6), and a third permits signs required by law or otherwise erected in discharge of governmental functions, see § 101.0700(F)(1). Thus, only four exceptions are actually based in any way on the subject matter of the signs at issue. See §§ 101.0700(F)(4), (5), (8), (12). 1 For example, because of the limited spectrum available and the peculiar intrusiveness of the medium, broadcasting is subject to limitations that would be intolerable if applied to other forms of communication. FCC v. Pacifica Foundation, 438 U.S. 726, 748-749, 98 S.Ct. 3026, 3039-3040, 57 L.Ed.2d 1073 (1978). Compare Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), with Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974). For the same reason, certain media may mix the form with the substance of the communication and the permissible range of regulation is correspondingly narrower than when the message is completely separable from the medium used to convey it. 2 Congress, too, has recognized the dangers to safety and the environment posed by billboards. The Highway Beautification Act of 1965 provides in part: "The Congress hereby finds and declares that the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to the Interstate System and the primary system should be controlled in order to protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty." 23 U.S.C. § 131(a) (emphasis added). If San Diego, through its duly constituted legislative body, may not guard against the defacing of its environs and the risks to the movement of traffic by eliminating billboards, the authority of Congress to limit billboards adjacent to federally funded highways is called into question as well. See ante, at 515, n. 20 (plurality opinion); ante, at 534, n. 11 (BRENNAN, J., concurring in judgment). Surely, the legislative powers of a municipality over its own affairs cannot be less than those of the Congress of the United States in its area of authority. 3 The parties have stipulated that billboards come in "two basic standardized forms," 12 ft. by 24 ft. and 14 ft. by 48 ft. Joint Stipulation of Facts No. 25, App. 47a. 4 Indeed, streets themselves may be places of tranquility. Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 651, 101 S.Ct. 2559, 2565, 69 L.Ed.2d 298 (1981). 5 Before trial, the parties stipulated: "Many businesses and politicians and other persons rely upon outdoor advertising because other forms of advertising are insufficient, inappropriate and prohibitively expensive." Joint Stipulation of Facts No. 28, App. 48a. This sweeping, conclusory, and rather vague generalization does nothing to explain how other media are insufficient, inappropriate, or too expensive. More important, the stipulation does not suggest that any particular point of view or issue will be suppressed by the elimination of billboards. 6 Indeed, the plurality acknowledges that a city may undertake this kind of balancing: "As we see it, the city could reasonably conclude that a commercial enterprise—as well as the interested public—has a stronger interest in identifying its place of business and advertising the products or services available there than it has in using or leasing its available space for the purpose of advertising commercial enterprises located elsewhere." Ante, at 512. A city reasonably may decide that onsite signs, by identifying the premises (even if in the process of advertising), actually promote traffic safety. Prohibiting them would require motorists to pay more attention to street numbers and less to traffic. 7 As Justice BRENNAN recognizes, ante, at 536-540, the plurality's treatment of the ordinance may well create this very danger, for the plurality appears willing to allow municipal officials to determine what is and is not noncommercial speech. 8 Indeed, in Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974), we upheld a municipal policy allowing commercial but not political advertising on city buses. I cannot agree with the plurality that Lehman "ha[s] no application here." Ante, at 514, n. 19. Although Lehman dealt with limited space leased by the city and this case deals with municipal regulation of privately leased space, the constitutional principle is the same: a city may forgo the "lurking doubts about favoritism" in granting space to some, but necessarily not all, political advertisers. 418 U.S., at 304, 94 S.Ct., at 2717 (plurality opinion of BLACKMUN, J.). The same constitutional dangers do not arise in allocating space among commercial advertisers. 9 See n. 8, supra. If a city were to permit onsite noncommercial billboards, one can imagine a challenge based on the argument that this favors the views of persons who can afford to own property in commercial districts. See supra, at 562-563. I intimate no view on whether I would accept such an argument should that case ever arise.

23

454 U.S. 1 102 S.Ct. 18 70 L.Ed.2d 1 Jack DUCKWORTH, Wardenv.Isadore SERRANO. No. 80-2041. Oct. 19, 1981. Page 2 PER CURIAM. 1 The motion of respondent to proceed in forma pauperis and the petition for writ of certiorari are granted. 2 This habeas corpus case involves the presentation to a federal appellate court of an ineffective-assistance-of-counsel claim that had never been raised in a state court. Respondent, Isadore Serrano, was convicted of the murder of Debra Gomez in Sunnyside Park, East Chicago, Ind. At trial, Norma Hernandez testified that Serrano had told her that he had killed Gomez. The respondent was represented by William Walker. Upon cross-examination, Mrs. Hernandez stated that the firm of Walker & Walker had represented her on a traffic ticket in the past and that she had asked William Walker to represent her on a pending robbery charge, unrelated to the Gomez slaying. Serrano did not challenge the effectiveness of counsel in his appeal to the Indiana Supreme Court, which affirmed his conviction, Serrano v. State, 266 Ind. 126, 360 N.E.2d 1257 (1977), or before the Federal District Court, which dismissed his petition for a writ of habeas corpus. 3 The issue was first raised in the Court of Appeals for the Seventh Circuit, which reversed the District Court's dismissal on grounds that Serrano's attorney's representation of a prosecution witness constituted a per se violation of the Sixth Amendment guarantee of effective representation. 654 F.2d 725 (1981). While acknowledging that the ineffective-assistance argument had never been presented to the state courts, the court nevertheless decided that "in view of the clear violation" of respondent's rights and "in the interest of judicial economy," there was no reason to await the state court's consideration of the issue. App. to Pet. for Cert. A-3. 4 No cases were cited by the Court of Appeals in support of its decision. Nor could such support reasonably be found.1 It has been settled for nearly a century that a state prisoner must normally exhaust available state remedies before a writ of habeas corpus can be granted by the federal courts. Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886); Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572 (1944); Irvin v. Dowd, 359 U.S. 394, 404-405, 79 S.Ct. 825, 831, 3 L.Ed.2d 900 (1959); Nelson v. George, 399 U.S. 224, 229, 90 S.Ct. 1963, 1966, 26 L.Ed.2d 578 (1970); Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Pitchess v. Davis, 421 U.S. 482, 95 S.Ct. 1748, 44 L.Ed.2d 317 (1975). The exhaustion requirement, now codified in the federal habeas statute, 28 U.S.C. §§ 2254(b) and (c),2 serves to minimize friction between our federal and state systems of justice by allowing the State an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights. Picard v. Connor, supra, 404 U.S., at 275, 92 S.Ct., at 512; Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408, 30 L.Ed.2d 418 (1971). An exception is made only if there is no opportunity to obtain redress in state court or if the corrective process is so clearly deficient as to render futile any effort to obtain relief. See, e.g., Wilwording v. Swenson, supra, 404 U.S., at 250, 92 S.Ct., at 512. State courts are "equally bound to guard and protect rights secured by the Constitution," Ex parte Royall, supra, 117 U.S., at 251, 6 S.Ct., at 740, and here neither the Court of Appeals nor the respondent contends that Indiana's postconviction procedures are inadequate to adjudicate the ineffective-assistance claim.3 Because obvious constitutional errors, no less than obscure transgressions, are subject to the requirements of § 2254(b), the Court of Appeals was obligated to dismiss respondent's petition. 5 Sound judicial policy points in the same direction. Creating a new exception for "clear violations" would not promote judicial economy, but rather would invite habeas petitioners to make a practice of first seeking relief on these grounds in federal courts. Significantly more time and resources would be consumed as district and appellate courts examined the merits to determine whether a claim met the requisite level of validity to justify dispensing with the exhaustion requirement. It is likely that in most cases the violation would not be so "clear" and that state prisoners would be directed to seek relief in the state system. Moreover, even when such clear violations are found, considerations of federal-state comity would still inhere, and it would be unseemly in our dual system of government for the federal courts to upset a state-court conviction without affording to the state courts the opportunity to correct a constitutional violation. Picard v. Connor, supra, 404 U.S., at 275, 92 S.Ct., at 512. 6 The Court of Appeals engrafted an exception onto the habeas statute not envisioned by Congress, inconsistent with the clear mandate of the Act, and irreconcilable with our decisions requiring the exhaustion of state judicial remedies. Therefore, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. 7 So ordered. 8 Justice MARSHALL dissents. 1 Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967), referred to by respondent as an example where the possibility of success in the state courts did not require denying relief, is not to the contrary. The habeas petitioner in Roberts thoroughly exhausted his state remedies, and we held, relying upon Brown v. Allen, 344 U.S. 443, 449, n.3, 73 S.Ct. 397, 403, n.3, 97 L.Ed. 469 (1953), that "Congress had not intended "to require repetitious applications to state courts.' " 389 U.S., at 42, 88 S.Ct., at 195. 2 Title 28 U.S.C. § 2254 provides in pertinent part: "(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court should not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. "(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." 3 Indiana Rules of Procedure for Post-Conviction Remedies, Rule 1, § 1, provides that "(a) Any person who has been convicted of, or sentenced for, a crime by a court of this state, and who claims "(1) that the conviction or the sentence was in violation of the Constitution of the United States or the constitution or laws of this state * * * * * ". . . may institute at any time a proceeding under this rule to secure relief." The Seventh Circuit has previously recognized that resort to this procedure was necessary to fully exhaust state remedies. Evans v. Lane, 419 F.2d 1337, cert. denied, 398 U.S. 939, 90 S.Ct. 1839, 26 L.Ed.2d 273 and 398 U.S. 944, 90 S.Ct. 1858, 26 L.Ed.2d 281 (1970).

01

454 U.S. 6 102 S.Ct. 28 70 L.Ed.2d 6 Carlos CHARDON, Individually, et al.v.Rafael Rivera FERNANDEZ et al.* No. 81-249. Nov. 2, 1981. Rehearing Denied Jan. 11, 1982. See 454 U.S. 1166, 102 S.Ct. 1042. PER CURIAM. 1 Respondents were nontenured administrators in the Puerto Rico Department of Education during the 1976-1977 school year.1 On dates prior to June 18, 1977, each respondent was notified by letter that his appointment would terminate at a specified date between June 30 and August 8, 1977. On June 19, 1978, Rafael Rivera Fernandez filed a complaint alleging that the terminations violated 42 U.S.C. § 1983. The District Court dismissed the suit, holding that the action had accrued on the date the employees received the letters and that the claims were therefore barred by the applicable 1-year statute of limitations, P.R. Laws Ann., Tit. 31, § 5298(2) (1968). The Court of Appeals for the First Circuit reversed on the ground that the limitations period did not begin running until respondents' appointments ended. 648 F.2d 765 (1981). 2 The decision below is contrary to a recent decision of this Court: Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). In that case, Ricks filed suit alleging that the denial of tenure at a state college deprived him of his rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and under 42 U.S.C. § 1981. And we held that the applicable limitations periods began to run when Ricks was denied tenure, rather than on the date his employment terminated. His action was, therefore, time-barred. 3 The Court of Appeals for the First Circuit distinguished Ricks on the ground that Ricks had alleged that denial of tenure was the "unlawful employment practice," whereas here respondents allege that termination of their employment as administrators was the "unlawful employment practice." We think Ricks is indistinguishable. When Ricks was denied tenure, he was given a 1-year "terminal" contract. Thus, in each case, the operative decision was made—and notice given—in advance of a designated date on which employment terminated.2 4 In Ricks, we held that the proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful. 449 U.S., at 258, 101 S.Ct., at 504. The fact of termination is not itself an illegal act. In Ricks, the alleged illegal act was racial discrimination in the tenure decision. Id., at 259, 101 S.Ct., at 504. Here, respondents allege that the decision to terminate was made solely for political reasons, violative of First Amendment rights. There were no other allegations, either in Ricks or in these cases, of illegal acts subsequent to the date on which the decisions to terminate were made. As we noted in Ricks, "[m]ere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination." Id., at 257, 101 S.Ct., at 504. In the cases at bar, respondents were notified, when they received their letters, that a final decision had been made to terminate their appointments. The fact that they were afforded reasonable notice cannot extend the period within which suit must be filed. We therefore grant certiorari. The judgments entered below on May 8, 1981, and June 11, 1981, are reversed, and the cases are remanded for further proceedings consistent with this decision. 5 Reversed and remanded. Justice BRENNAN, with whom Justice MARSHALL joins, dissenting. 6 While I agree with the analysis of Judge Campbell for the Court of Appeals, and therefore join in the dissenting opinion of Justice STEVENS, I believe this per curiam disposition is particularly ill-conceived. 7 It is one thing to hold, as was held in Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), that for the purpose of computing the limitations period, a cause of action for denial of a benefit such as tenure, and consequent damage, accrues when the plaintiff learns that he has been denied that benefit; it is quite another to hold, as the Court does here, that a cause of action for damages resulting from an unconstitutional termination of employment accrues when the plaintiff learns that he will be terminated. To my knowledge, such a rule has no analogue in customary principles of limitations law. See 4 A. Corbin, Contracts § 989 (1951) ("The plaintiff should not be penalized for leaving to the defendant an opportunity to retract his wrongful repudiation; and he would be so penalized if the statutory period of limitation is held to begin to run against him immediately"). 8 The thrust of the Court's decision is to require a potential civil rights plaintiff to measure the time for filing his claim from the moment some form of injunctive relief first becomes available. The effect of this ruling will be to increase the number of unripe and anticipatory lawsuits in the federal courts lawsuits that should not be filed until some concrete harm has been suffered, and until the parties, and the forces of time, have had maximum opportunity to resolve the controversy. 9 Because this case is plainly distinguishable from Ricks, and the decision potentially far-reaching in its impact, the issue should be decided only upon plenary review. The Court's summary reversal is therefore particularly inappropriate, and I respectfully dissent. 10 Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, dissenting. 11 After noting that most judges who have confronted the issue have reached a conclusion at odds with the Court's holding today, Judge Campbell, writing for the Court of Appeals, cogently explained why the decision in Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431, is not dispositive and should not be followed in this case: 12 "The issue of when the cause of action accrues depends, we believe, on when the alleged unlawful act occurred. It is necessary, therefore, to identify the unlawful act. Where, as here, the claim is that an employment decision was made for a prohibited reason, it could be argued that the unlawful act was the making of the decision, rather than the implementation of it. But we think such a refined rule would depart too sharply from the understanding of ordinary people. The plaintiffs in these cases are complaining that they were demoted or discharged, not merely that a decision was made on a particular occasion, of which notice was then given, to take such action against them. Had the decision been made but not yet implemented, equitable relief might have been sought to forestall irreparable harm, but it is unlikely that plaintiffs would have sought or received damages until or unless the threatened action was consummated. The alleged unlawful act was revocable, incomplete and, for practical purposes, non-existent until the actual demotion or discharge. 13 "Moreover, important policies of judicial administration favor a rule based on the date of implementation. While the date of notice in the present cases was easily established, other cases would surely arise in which resolution of that question would require lengthy proceedings. Notice might be oral, or it might be ambiguously phrased, or it might be transmitted by one whose authority is subject to question. We see no value in requiring courts and parties to devote their resources to litigating the adequacy of notice, when the date of the action itself is easily determined. In saying this we are aware that the Supreme Court has declined to reach out for an easily identified date when that date bears no genuine relationship to the act of which plaintiff complains. Compare Delaware State College v. Ricks [449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431] (1980) (date of termination not sufficiently connected to the challenged denial of tenure), discussed infra. But where, as here, the date that is most closely related to the plaintiffs' claim is also the date most easily identified, we think concern for adoption of the rule that best promotes certainty and eliminates litigation over technical niceties is well warranted. 14 "After the district court's decision of these cases, the Supreme Court decided Delaware State College v. Ricks, supra. Defendants contend that that decision compels affirmance here. We disagree. Ricks, a black Liberian instructor, was informed in June 1974 that the faculty of Delaware State College had voted to deny him tenure. In accordance with the school's usual practice, he was thereafter granted a one-year terminal contract, after which his employment with the school ended. In his suit alleging discrimination on the basis of national origin, Ricks contended that the limitations period under Title VII began to run only when he left the university in June 1975. The Supreme Court rejected this argument and concluded that Ricks' cause of action had accrued when he was notified of the denial of tenure, in June 1974, and that his suit was therefore barred. The Court focussed on the allegations of Ricks' complaint, which it found to charge discrimination in the denial of tenure, not in the discharge or any other subsequent action. The Court held that the denial of tenure was the 'unlawful employment practice' within the meaning of Title VII, and that the date of that action was therefore the beginning of the limitations period. Three justices, in dissent, accepted the majority's analysis (i. e., that denial of tenure, not discharge, was the unlawful employment practice) but placed the denial of tenure at a later date because of the later decision of an internal grievance board. Justice Stevens, alone among the justices, took the view that denial of tenure is analogous to advance notice of discharge. Based on that analogy, he argued that the date of discharge should control. 15 "Refusal of the Ricks majority to adopt Justice Stevens' analogy does not seem to us in any way to repudiate the precedents to which he sought to draw an analogy. The majority held merely that the denial of tenure in the academic setting is fundamentally different from a notice of discharge; it is a distinct and separate employment action, with important and far-reaching consequences for all aspects of the employee's status. While denial of tenure is often followed by discharge, it is not always, and the consequences of denial of tenure are not dependent on its being followed by discharge. The Court found that Ricks' complaint was based on the denial of tenure, which was effective immediately; it followed, therefore, that the limitations period began as soon as Ricks received notice of that action. Here, plaintiffs complain of discharges and demotions, not of any distinct event that occurred on an earlier date. The letters notifying them of the planned actions were notice and nothing more; they were not actions in themselves comparable to the denial of tenure. 16 "To be sure, as we have said, one can argue that the notices themselves mirror the allegedly discriminatory motives of the defendants. One can also argue that a suit for injunctive relief might lie after receipt of notice (or, indeed, even before) to forestall threatened irreparable harm. Still plaintiffs' quarrel is with their demotions and discharges—not with the notices themselves. No actual harm is done until the threatened action is consummated. Until then, the act which is the central focus of the plaintiffs' claim remains incomplete. Such was not the situation in Ricks, where the denial of tenure was itself the completed act being challenged. 17 "We conclude, therefore, that Ricks is inapplicable to these cases, and that the district court erred in dismissing the complaints." 648 F.2d 765, 768-770 (CA1 1981) (footnotes omitted). 18 For the reasons stated by the Court of Appeals, I respectfully dissent. * Together with Chardon, Secretary of Public Education of Puerto Rico, et al. v. Rodriguez; Chardon, Secretary of Public Education of Puerto Rico, et al. v. Santiago de Orta; Chardon, Secretary of Public Education of Puerto Rico, et al. v. Angiuta de Rios; Chardon, Secretary of Public Education of Puerto Rico, et al. v. Sanchez; Chardon, Secretary of Public Education of Puerto Rico, et al. v. Santana; Chardon, Secretary of Public Education of Puerto Rico, et al. v. Perez-Ramirez; Chardon, Secretary of Public Education of Puerto Rico, et al. v. Roman de Molina; Chardon, Secretary of Public Education of Puerto Rico, et al. v. Collazo; Chardon, Secretary of Public Education of Puerto Rico, et al. v. Garcia; Chardon, Secretary of Public Education of Puerto Rico, et al. v. Lopez de Ferra; Chardon, Secretary of Public Education of Puerto Rico, et al. v. Beltran; Chardon, Secretary of Public Education of Puerto Rico, et al. v. Cacho de Freytes; and Chardon, Secretary of Public Education of Puerto Rico, et al. v. Navarro, also on petition for certiorari to the same court (see this Court's Rule 19.4). 1 Petitioners request a writ of certiorari to the Court of Appeals for the First Circuit to review a total of 14 judgments entered in favor of 36 respondents. The published decision, discussed in text, represents one judgment in a suit brought by 23 respondents; that decision was issued May 8, 1981. See 648 F.2d 765 (1981). Identical individual judgments in favor of the other 13 respondents were issued on June 11, 1981. See App. to Pet. for Cert. 11a (unpublished orders). 2 Delaware State College had a policy of giving a final 1-year contract to teachers who were denied tenure. Only when that contract expired, did the "employment relationship en[d]." 449 U.S., at 253, 101 S.Ct., at 501. Apparently, the practice of the Puerto Rico Department of Education was similar in principle. Following a decision to terminate, the actual ending of employment was deferred to a designated date. Advance notice of termination is a customary and reasonable employment practice which affords the employee an opportunity to find another job.

12

454 U.S. 14 102 S.Ct. 31 70 L.Ed.2d 13 A. R. JAGO, Former Superintendent, Southern Ohio Correctional Facility, et al.v.George D. VAN CUREN. No. 80-1942. Nov. 9, 1981. PER CURIAM. 1 After pleading guilty to embezzlement and related crimes, respondent was sentenced by an Ohio court to not less than 6 nor more than 100 years in prison. Under existing law respondent would have become eligible for parole in March 1976. On January 1, 1974, however, Ohio enacted a "shock parole" statute which provided for the early parole of first offenders who had served more than six months in prison for nonviolent crimes. Ohio Rev.Code Ann. § 2967.31 (1975). 2 Pursuant to this statute, respondent was interviewed on April 17, 1974, by a panel representing the Ohio Adult Parole Authority (OAPA). The panel recommended that respondent be paroled "on or after April 23, 1974," and OAPA subsequently approved the panel's recommendation. Respondent was notified of the decision by a parole agreement which stated: 3 "The Members of the Parole Board have agreed that you have earned the opportunity of parole and eventually a final release from your present conviction. The Parole Board is therefore ordering a Parole Release in your case." Brief in Opposition 1. 4 Respondent attended and completed prison prerelease classes and was measured for civilian clothes. 5 At a meeting six days after the panel's interview with respondent, OAPA was informed that respondent had not been entirely truthful in the interview or in the parole plan that he had submitted to his parole officers. Specifically, respondent had told the panel that he had embezzled $1 million when in fact he had embezzled $6 million, and had reported in his parole plan that he would live with his half brother if paroled when in fact he intended to live with his homosexual lover.1 As a result of these revelations, OAPA rescinded its earlier decision to grant respondent "shock parole" and continued his case to a June 1974 meeting at which parole was formally denied. Neither at this meeting nor at any other time was respondent granted a hearing to explain the false statements he had made during the April interview and in the parole plan which he had submitted. 6 After denial of his parole, respondent brought a mandamus action against OAPA. The Supreme Court of Ohio held that OAPA was not required to grant respondent a hearing and that it could not be commanded to recall its decision rescinding parole. State ex rel. Van Curen v. Ohio Adult Parole Authority, 45 Ohio St.2d 298, 345 N.E.2d 75 (1976). We denied respondent's petition for certiorari to review the decision of the Supreme Court of Ohio. 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326 (1976). 7 Respondent then filed a petition for a writ of habeas corpus in the Federal District Court for the Southern District of Ohio, claiming that the rescission without hearing violated his right to due process of law under the United States Constitution. The District Court denied the writ and the United States Court of Appeals for the Sixth Circuit summarily affirmed the denial. Van Curen v. Jago, 578 F.2d 1382 (1978). We granted certiorari, vacated the judgment of the Court of Appeals, and remanded for further consideration in light of our decision in Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); Jago v. Van Curen, 442 U.S. 926, 99 S.Ct. 2854, 61 L.Ed.2d 294 (1979). 8 On remand the Court of Appeals in turn remanded to the District Court for further consideration. Applying Greenholtz, the District Court determined that "early release in Ohio is a matter of grace" and that Ohio law "is fairly unambiguous that no protectable interest in early release arises until actual release." App. to Pet. for Cert. 24A-25A. Accordingly, the District Court held that the rescission of respondent's parole without a hearing did not violate due process. 9 On appeal, the Court of Appeals acknowledged that "[p]arole for Ohio prisoners lies wholly within the discretion of the OAPA," and that "[t]he statutes which provide for parole do not create a protected liberty interest for due process purposes." 641 F.2d 411, 414 (1981). Nonetheless, the Court of Appeals reversed the decision of the District Court. Relying upon language from our decision in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), the Court of Appeals concluded that a liberty interest such as that asserted by respondent can arise from "mutually explicit understandings." Seeid., at 601, 92 S.Ct., at 2699. Thus, it held: "Having been notified that he 'ha[d] been paroled' and that 'the Board is ordering a Parole Release in your case,' [respondent] had a legitimate expectation that his early release would be effected. This expectation was a liberty interest, the deprivation of which would indeed constitute a grievous loss. It was an interest which could not be taken from him without according [him] procedural due process." 641 F.2d, at 416. 10 We do not doubt that respondent suffered "grievous loss" upon OAPA's rescission of his parole. But we have previously "reject[ed] . . . the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause." Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). In this case, as in our previous cases, "[t]he question is not merely the 'weight' of the individual's interest, but whether the nature of the interest is one within the contemplation of the 'liberty or property language of the Fourteenth Amendment.' " Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). We hold that the Court of Appeals erred in finding a constitutionally protected liberty interest by reliance upon the "mutually explicit understandings" language of Perry v. Sindermann, supra. 11 Our decision in Sindermann was concerned only with the Fourteenth Amendment's protection of "property" interests, and its language, relied upon by the Court of Appeals, was expressly so limited: 12 "We have made clear in [Board of Regents v. Roth, 408 U.S. 564, 571-572, 92 S.Ct. 2701, 2705-2706, 33 L.Ed.2d 548 (1972)], that 'property' interests subject to procedural due process protection are not limited by a few rigid, technical forms. Rather, 'property' denotes a broad range of interests that are secured by 'existing rules or understandings.' Id., at 577 [92 S.Ct., at 2709]. A person's interest in a benefit is a 'property' interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing." 408 U.S., at 601, 92 S.Ct., at 2699. 13 To illustrate the way in which "mutually explicit understandings" operate to create "property" interests, we relied in Sindermann upon two analogous doctrines. First, we compared such understandings to implied contracts: 14 "[The] absence of . . . an explicit contractual provision may not always foreclose the possibility that a teacher has a 'property' interest in re-employment. . . . [T]he law of contracts in most, if not all, jurisdictions long has employed a process by which agreements, though not formalized in writing, may be 'implied.' " Id., at 601-602, 92 S.Ct., at 2699-2700. 15 That the implied-contract aspect of Sindermann "understandings" has been limited to the creation of property interests is illustrated by Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), another property interest case in which we relied upon the "understandings" language of Sindermann to conclude that "[a] property interest in employment can, of course, be created by ordinance, or by an implied contract." 426 U.S., at 344, 96 S.Ct., at 2077 (footnote omitted). 16 Principles of contract law naturally serve as useful guides in determining whether or not a constitutionally protected property interest exists. Such principles do not, however, so readily lend themselves to determining the existence of constitutionally protected liberty interests in the setting of prisoner parole. In Meachum v. Fano, supra, we recognized that the administrators of our penal systems need considerable latitude in operating those systems, and that the protected interests of prisoners are necessarily limited: 17 "Our cases hold that the convicted felon does not forfeit all constitutional protections by reason of his conviction and confinement in prison. He retains a variety of important rights that the courts must be alert to protect. See Wolff v. McDonnell, 418 U.S. [539] at 556 [94 S.Ct. 2963, at 2979, 41 L.Ed.2d 935], and cases there cited. But none of these cases reaches this one; and to hold as we are urged to do that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts." 427 U.S., at 225, 96 S.Ct., at 2538. 18 We would severely restrict the necessary flexibility of prison administrators and parole authorities were we to hold that any one of their myriad decisions with respect to individual inmates may, as under the general law of contracts, give rise to protected "liberty" interests which could not thereafter be impaired without a constitutionally mandated hearing under the Due Process Clause. 19 The second analogy relied upon in Sindermann to give content to the notion of "mutually explicit understandings" was the labor law principle that the tradition and history of an industry or plant may add substance to collective-bargaining agreements. See 408 U.S., at 602, 92 S.Ct., at 2700. Just last Term, however, we rejected an argument that a sort of "industrial common law" could give rise to a liberty interest in the prisoner parole setting. The prisoners in Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981),2 relying upon the frequency with which the Connecticut Board of Pardons had in the past commuted and paroled life sentences, argued that the consistency of the Board's actions " 'ha[d] created an unwritten common law of sentence commutation and parole acceleration,' " and had given rise to " 'an unspoken understanding between the State Board [of Pardons] and inmates.' " Id., at 465, 101 S.Ct., at 2464 (emphasis added) (quoting Brief for Respondents, O.T. 1980, No. 79-1997, pp. 17-18). We responded: 20 "No matter how frequently a particular form of clemency has been granted, the statistical probabilities standing alone generate no constitutional protections; a contrary conclusion would trivialize the Constitution. The ground for a constitutional claim, if any, must be found in statutes or other rules defining the obligations of the authority charged with exercising clemency." 452 U.S., at 465, 101 S.Ct., at 2464. 21 Thus, this Court has recognized that the "mutually explicit understandings" of Sindermann have a far more useful place in determining protected property interests than in determining those liberty interests protected by the Due Process Clause of the Fourteenth Amendment. 22 As the majority opinion in the Court of Appeals for the Sixth Circuit observed: "Parole for Ohio prisoners lies wholly within the discretion of the OAPA. The statutes which provide for parole do not create a protected liberty interest for due process purposes." 641 F.2d, at 414. In dissent, Judge Phillips explained: 23 "In State ex rel. Newman v. Lowery, 157 Ohio St. 463, 464, 105 N.E.2d 643 (1952), cert. denied, 344 U.S. 881 [73 S.Ct. 176, 97 L.Ed. 682] (1952), the Supreme Court of Ohio said: 'The question of parole of prisoners being in the discretion of the Pardon and Parole Commission, that commission had authority to rescind its order of March 9, 1950, granting a parole effective on or after a future date.' " Id., at 418. 24 Notwithstanding its conclusion that the granting of parole was a purely discretionary matter, the majority of the Court of Appeals in this case concluded that, once the recommendation for "shock parole" had been made, respondent was entitled to a hearing for the purpose of explaining his false statements and representations because the initial recommendation for "shock parole" gave rise to a "mutually explicit understanding." As we have previously stated, however, we deal here not with "property" interests but with "liberty" interests protected by the Fourteenth Amendment. We think that the reasoning of Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); Dumschat, supra, and the Court of Appeals' own concession that Ohio law creates no protected "liberty" interest, require reversal of the holding of the Court of Appeals that respondent was entitled to a hearing prior to denial of his parole in June.3 25 The petition for certiorari is granted, the respondent's motion to proceed in forma pauperis is granted, and the judgment of the Court of Appeals for the Sixth Circuit is 26 Reversed. 27 Justice BLACKMUN, concurring in the result. 28 I agree with the Court that the judgment of the Court of Appeals is to be reversed, but I am troubled by the rationale of the Court's per curiam opinion, and therefore I do not join it. 29 I would rest the reversal on the ground stated by Judge Phillips in his dissent from the judgment of the Court of Appeals, that is, on the fact that, under Ohio law, state parole authorities have the clear right to rescind a parole order before it becomes effective. 641 F.2d 411, 417-418. It therefore seems to me that the Court of Appeals erred in holding that there was a mutual understanding here. Respondent's expectation of release was no more than a unilateral one and no due process rights attached. I also could hold that no mutual expectation existed under the circumstances inasmuch as the Parole Board's order was based on respondent's untruths; respondent could not reasonably believe that there was a legitimate mutual understanding that he would be released. 30 That, I feel, is as far as this Court needs to go. I see no reason to go further and to suggest, as the Court does, that a mutual understanding may give rise to a property interest, but not to a liberty interest. That distinction may be an appropriate one, but I am not yet prepared to say so, and I certainly am not prepared to say so on a summary reversal. Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981), does not stand for so broad a proposition, and Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972), suggests for me that a protected liberty interest may indeed be based on a mutual understanding. 31 Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, dissenting. 32 Because the facts of this case are so unusual, it is surprising that the Court considers it appropriate to grant certiorari and address the merits. It is even more surprising that the Court has decided the mootness question by adopting the reasoning that persuaded Justice BRENNAN, Justice POWELL, and me to dissent in Scott v. Kentucky Parole Board, 429 U.S. 60, 97 S.Ct. 342, 50 L.Ed.2d 218; see also Vitek v. Jones, 436 U.S. 407, 410, 98 S.Ct. 2276, 2277, 56 L.Ed.2d 381 (STEVENS, J., dissenting). See ante, at 21-22, n. 3. Nevertheless, I am unable to join the Court's disposition on the merits. 33 The Court has fashioned a constitutional distinction between the decision to revoke parole and the decision to grant or to deny parole. Arbitrary revocation is prohibited by Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, whereas arbitrary denial is permitted by Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 9-11, 99 S.Ct. 2100, 2104-2105, 60 L.Ed.2d 668.1 Even if one accepts the validity of that dubious distinction,2 I believe the Court misapplies it in this case. 34 In the Court's view, the grant of parole creates a constitutionally protected interest in liberty that previously did not exist. Under that view, a profound change in the status of an individual occurs when he is paroled; he has greater legal rights after parole than before. The question is what event triggers this change in legal status, the act of walking through the exit gates or the State's formal decision, conveyed to the prisoner, to grant him his conditional freedom. 35 For the ordinary litigant, the entry of judgment by the decisionmaker—not the execution of that judgment by the sheriff determines his legal rights. In my opinion, the interests in orderly decisionmaking that are protected by the Due Process Clause of the Fourteenth Amendment dictate a similar answer in the context of this case. As the Court has pointed out: 36 "The parolee is not the only one who has a stake in his conditional liberty. Society has a stake in whatever may be the chance of restoring him to normal and useful life within the law. Society thus has an interest in not having parole revoked because of erroneous information or because of an erroneous evaluation of the need to revoke parole, given the breach of parole conditions. And society has a further interest in treating the parolee with basic fairness: fair treatment in parole revocations will enhance the chance of rehabilitation by avoiding reactions to arbitrariness." Morrissey v. Brewer, supra, at 484, 92 S.Ct., at 2601 (citation and footnote omitted). 37 It seems quite clear to me that precisely those interests are implicated by this case. 38 When the Ohio Adult Parole Authority revoked its decision to grant respondent parole, it acted on the basis of ex parte information which respondent had no opportunity to deny or to explain. Even if that information was entirely accurate in this case, and even if it was sufficiently important to justify the changed decision, the effect of the Court's holding today is to allow such decisions to stand even if wrong and wholly arbitrary. I am persuaded that such a holding is erroneous.3 If the Court had allowed the parties to argue the merits of the issue—instead of acting summarily on the basis of an incomplete presentation—the error might have been avoided. In all events, I respectfully dissent. 1 In his brief in opposition to the petition for certiorari, respondent does not contest OAPA's conclusion that he misrepresented the amount of his embezzlement to the interviewing panel, and admits "that the total loss was over a million dollars." Brief for Respondent, at 2. Moreover, respondent admits that his parole plan misrepresented his relationship to the person with whom he planned to live upon release. Id., at 2-3. 2 Justice STEVENS' dissenting opinion appears to follow from his dissenting view in Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 22, 99 S.Ct. 2100, 2111-2112, 60 L.Ed.2d 668 (1979) (MARSHALL, J., joined by BRENNAN and STEVENS, JJ., dissenting in part), and Connecticut Board of Pardons v. Dumschat, 452 U.S., at 468 101 S.Ct., at 2466 (STEVENS, J., dissenting). It is understandable that the distinction between Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), which involved return to custody after parole release, and Greenholtz v. Nebraska Penal Inmates, supra, and Connecticut Board of Pardons v. Dumschat, supra, which involved prerelease expectations of parole or probation, would be thought "dubious" by one who dissented in the two latter cases. Nonetheless, that view was expressed in dissents from the Court's opinions in those cases and cannot be regarded as controlling here. 3 Petitioners contend that this case is moot under Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975), because respondent has now been paroled. We disagree. Although it is true that respondent was released from prison in 1980, the release was conditioned upon respondent's compliance with terms that significantly restrict his freedom. For example, respondent must receive written permission before changing his residence, changing his job, or traveling out of state, must report to local law enforcement authorities at any out-of-state destination to which he travels, must not maintain a checking account, must report monthly to his parole officer, and may be imprisoned upon violation of the conditions of his parole. Affidavit in Support of Respondent's Motion to Proceed In Forma Pauperis. In Weinstein, by contrast, we noted that "respondent was temporarily paroled on December 18, 1974, and that this status ripened into a complete release from supervision on March 25, 1975. From that date forward it [was] plain that respondent [could] have no interest whatever in the procedures followed by petitioners in granting parole." 423 U.S., at 148, 96 S.Ct., at 348 (emphasis added). Similarly, in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), where a state prisoner received conditional parole virtually identical to respondent's parole in this case, we held that the prisoner was "in custody" for purposes of federal habeas and that the Court of Appeals had erred in dismissing the appeal as moot. Id., at 241-243, 83 S.Ct., at 376-377. The conditions of respondent's parole will last for a period of two years; thereafter he will be free from OAPA's supervision. Had OAPA not rescinded respondent's parole in 1974 it is likely that he would no longer be subject to parole restrictions on his freedom. Therefore, were we to affirm the lower court's conclusion that OAPA should not have rescinded respondent's parole without a hearing, we could remand the case with instructions that the District Court determine whether a hearing would have resulted in respondent's release in 1974. If so, the flexible nature of habeas relief would permit the District Court to order that respondent be released from the conditions under which he is now living. Indeed, in his response to the petition for certiorari, respondent affirmatively states that if the lower court's decision is affirmed he will "immediately seek release from parole." Brief in Opposition 7. In Vitek v. Jones, 436 U.S. 407, 98 S.Ct. 2276, 56 L.Ed.2d 381 (1978), and Scott v. Kentucky Parole Board, 429 U.S. 60, 97 S.Ct. 342, 50 L.Ed.2d 218 (1976), the cases cited by the dissent, we remanded so that the Courts of Appeals might consider mootness before we decided the question. In this case the Court of Appeals did consider mootness and, as the above discussion indicates, correctly concluded that a live controversy remains. 1 Cf. Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (arbitrary denial of an application for commutation of a life sentence is permissible). 2 See Greenholtz v. Nebraska Penal Inmates, 442 U.S., at 19-20, 99 S.Ct., at 2110 (POWELL, J., concurring in part and dissenting in part); id., at 25-29, 99 S.Ct., at 2113-2115 (MARSHALL, J., dissenting in part). See also Connecticut Board of Pardons v. Dumschat, supra, at 470, 101 S.Ct., at 2467 (STEVENS, J., dissenting). 3 It is a federal constitutional question whether, under all the circumstances, including the existence of rights conferred by state statutes and other rules, an individual has such a legitimate claim of entitlement to freedom that due process protections attach. In its answer to that federal question, the Court of Appeals recognized that "[p]arole for Ohio prisoners lies wholly within the discretion of the OAPA. The statutes which provide for parole do not create a protected liberty interest for due process purposes." 641 F.2d, at 414 (CA6 1981). But the Court of Appeals' holding was based on circumstances other than the state statutes and other rules: "We do not reach this conclusion on the basis of cases from jurisdictions which have rules or guidelines that establish entitlement to parole or permit rescission under narrowly defined circumstances. There is no evidence that Ohio has such rules or guidelines. Nor do we base our decision on the evidence that less than one percent of Ohio's parole grants are rescinded. Cf. Dumschat v. Board of Pardons, 618 F.2d 216 (2d Cir.), cert. granted, [449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 127] (1980). This evidence related to paroles generally and there was no proof directed specifically to shock parole, the comparatively new Ohio method of release involved in the present case. Rather, the decision is based on the facts of this case which lead ineluctably to the conclusion that acts of the OAPA created a protected liberty interest in Van Curen." Id., at 416-417 (citations omitted). Even if the Court correctly states that "the 'mutually explicit understandings' of Sindermann have a far more useful place in determining protected property interests than in determining those liberty interests protected by the Due Process Clause of the Fourteenth Amendment," ante, at 20, the question remains whether the act of the State in notifying the respondent that he had been granted parole as of a specific date created such a legitimate expectation of freedom as to trigger due process protections. The Court does not address that question, relying instead on the "concession [of the Court of Appeals] that Ohio law creates no protected 'liberty' interest." Ante, at 21. But even this Court's narrowest decisions do not limit the due process analysis to an examination of written state laws; nor do they exclude consideration of the decisions and acts of the State directed at a particular individual.

34

454 U.S. 27 102 S.Ct. 38 70 L.Ed.2d 23 FEDERAL ELECTION COMMISSION, Petitioner,v.DEMOCRATIC SENATORIAL CAMPAIGN COMMITTEE et al. NATIONAL REPUBLICAN SENATORIAL COMMITTEE, Petitioner, v. DEMOCRATIC SENATORIAL CAMPAIGN COMMITTEE et al. Nos. 80-939, 80-1129. Argued Oct. 6, 1981. Decided Nov. 10, 1981. Syllabus One provision of the Federal Election Campaign Act of 1971 (Act), 2 U.S.C. § 441a(d)(3), limits the amount that the national committee and state committees of a political party may spend in connection with the general election of a candidate for the United States Senate or House of Representatives. Petitioner National Republican Senatorial Committee (NRSC) is a political committee organized to support Republican candidates for the Senate. Although the Act authorizes the NRSC to contribute up to a certain amount to such candidates, it is not authorized to make expenditures on their behalf. The Federal Election Commission (FEC), however, has permitted the NRSC to act as agent of national and state party committees in making expenditures on their behalf. When certain state Republican Party committees designated the NRSC as their agent for § 441a(d)(3) expenditure purposes, the respondent Democratic Senatorial Campaign Committee filed a complaint with the FEC, asserting that the NRSC's agreements with the state committees were contrary to § 441a(d)(3). The FEC dismissed the complaint, concluding that there was "no reason to believe" that the agreements violated the Act. On review, the District Court granted the FEC's motion for summary judgment, holding that the FEC's decision was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." The Court of Appeals reversed on the ground that the "plain language" of § 441a(d)(3) precluded the agency agreements between state committees and the NRSC. Held: Section 441a(d)(3) does not expressly or by necessary implication foreclose the use of agency agreements, such as are at issue here, and the FEC thus acted within the authority vested in it by Congress when it determined to permit such agreements. Pp. 31-43. (a) While § 441a(d)(3) does not authorize the NRSC to make expenditures in its own right, it does not follow that it may not act as agent of a committee that is expressly authorized to make expenditures. Nothing in the statute suggests that a state committee may not designate another committee to be its alter ego and to act in its behalf for the purposes of § 441a(d)(3). Nor does the legislative history of the Act purport to disapprove agency arrangements. Pp. 31-36. (b) Under the standard of whether the FEC's construction of the Act was "sufficiently reasonable" to be accepted by a reviewing court, the District Court was correct in accepting the FEC's judgment. The FEC's view that the agency agreements were logically consistent with § 441a(a)(4)—which authorizes the transfer of funds among national, state, and local committees of the same party—is acceptable. And the FEC's interpretation of § 441a(d)(3) is not inconsistent with any discernible purpose of the Act. Pp. 36-42. 212 U.S.App.D.C. 374, 660 F.2d 773, reversed. Charles Nevett Steele, Washington, D. C., for Federal Election Commission. Jan W. Baran, Washington, D. C., for National Republican Senatorial Committee. Robert F. Bauer, Washington, D. C., for respondents. Justice WHITE delivered the opinion of the Court. 1 The Federal Election Campaign Act of 1971, 86 Stat. 11, as amended, 2 U.S.C. § 431 et seq. (1976 ed. and Supp.IV), limits the contributions that may be made to candidates or political committees in an election for federal office. One provision of the Act, § 441a(d), authorizes limited expenditures by the national and state committees of a political party in connection with a general election campaign for federal office. After authorizing such expenditures, which otherwise would be impermissible,1 the section specifies the amount a national committee may spend in connection with a Presidential campaign, § 441a(d)(2), and limits the amount that national and state committees of a political party may spend in connection with the general election campaign of a candidate for the Senate or the House of Representatives, § 441a(d)(3). In this litigation we examine whether § 441a(d)(3) is violated when a state committee of a political party designates the national senatorial campaign committee of that party as its agent for the purpose of making expenditures allowed by the Act. 2 * The National Republican Senatorial Committee (NRSC) is a political committee organized specifically to support Republican candidates in elections for the United States Senate. Although the NRSC is authorized by § 441a(h) to contribute up to $17,500 to a candidate for election to the Senate, it is not given authority by § 441a(d) to make expenditures on behalf of such candidates, and it is the position of the Federal Election Commission, the agency charged with enforcement of the Act, that the NRSC may not do so on its own account. The Commission, however, has permitted the NRSC to act as the agent of national and state party committees in making expenditures on their behalf. 3 In February 1977, in response to an inquiry submitted late in 1976, the Commission issued an Advisory Opinion, 1976-108, that it would be consistent with the Act for the NRSC to spend its own funds in support of congressional candidates as the designated agent of the Republican National Committee (RNC). In April 1977, the Commission issued a regulation, 11 CFR § 110.7(a)(4) (1981), which provides that the national party committees may make expenditures in the general election campaign for President "through any designated agent, including state and subordinate party committees." On the basis of this regulatory authority, the National Committee of the Democratic Party entered into an agreement specifying the Democratic Senatorial Campaign Committee (DSCC) as its agent for the expenditure of authorized funds in Senate campaigns. In 1978, certain state Republican Party committees designated the NRSC as their agent for § 441a(d)(3) expenditure purposes.2 Complaints were filed with the Commission challenging this practice as inconsistent with the Act. In dismissing these complaints, the Commission twice ruled by unanimous votes that the agency arrangements were not forbidden by the Act. In re National Republican Senatorial Committee, Federal Election Commission Matter Under Review (MUR) 780 (Jan. 19, 1979); In re National Republican Senatorial Committee, Federal Election Commission MUR 820 (June 17, 1979). In 1980, certain state committees again designated the NRSC as their agent, and on May 19, the DSCC filed its complaint with the Commission asserting that the NRSC's agreements with the state committees were contrary to § 441a(d)(3). The complaint did not challenge the contemporaneous agency agreement under which the NRSC acted as the agent of the RNC in connection with the latter's expenditures under § 441a(d). After considering the report of its General Counsel, the Commission unanimously dismissed the complaint, concluding that there was "no reason to believe" that the agreements violated the Act. 4 The DSCC petitioned for review in the District Court for the District of Columbia pursuant to § 437g(a)(8).3 That court granted the Commission's motion for summary judgment, concluding that the decision of the Commission was not "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." Democratic Senatorial Campaign Committee v. Federal Election Comm'n, No. 80-1903 (DC Aug. 28, 1980) (reprinted at App. to Pet. for Cert. of NRSC B4). On appeal, the Court of Appeals for the District of Columbia Circuit granted the NRSC leave to intervene and reversed the judgment of the District Court after concluding that the "plain language of Section 441a(d)(3) precludes" the agency agreements between state committees and the NRSC. 212 U.S.App.D.C. 374, 383, 660 F.2d 773, 782. We granted the petitions for certiorari filed by the Commission and the NRSC, 450 U.S. 964, 101 S.Ct. 1479, 67 L.Ed.2d 612 (1981), and we now reverse the judgment of the Court of Appeals. II 5 Although the Court of Appeals first addressed whether and to what extent it should defer to the Commission's construction of the Act, 212 U.S.App.D.C., at 377, 660 F.2d, at 776, this discussion and the conclusion that little or no deference was due the Commission were pointless if the court was correct that the agency agreements violated the plain language of the Act as well as the statutory purposes revealed by the legislative history. The interpretation put on the statute by the agency charged with administering it is entitled to deference, NLRB v. Bell Aerospace Co.,, 416 U.S. 267, 275, 94 S.Ct. 1757, 1762, 40 L.Ed.2d 134 (1974); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965), but the courts are the final authorities on issues of statutory construction. They must reject administrative constructions of the statute, whether reached by adjudication or by rule-making, that are inconsistent with the statutory mandate or that frustrate the policy that Congress sought to implement. SEC v. Sloan, 436 U.S. 103, 118, 98 S.Ct. 1702, 1711, 56 L.Ed.2d 148 (1978); FMC v. Seatrain Lines, Inc., 411 U.S. 726, 745-746, 93 S.Ct. 1773, 1784-1785, 36 L.Ed.2d 620 (1973); Volkswagenwerk v. FMC, 390 U.S. 261, 272, 88 S.Ct. 929, 935, 19 L.Ed.2d 1090 (1968); NLRB v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1965). Accordingly, the crucial issue at the outset is whether the Court of Appeals correctly construed the Act. For the reasons that follow, we disagree with the Court of Appeals. As we understand the Act and its legislative history, § 441a(d)(3) does not foreclose the use of agency agreements. The Commission thus acted within the authority vested in it by Congress when it determined to permit such agreements. Section 441a(d)(3) provides as follows: 6 "The national committee of a political party, or a 7 State committee of a political party, including any subordinate committee of a State committee, may not make any expenditures in connection with the general election campaign of a candidate for Federal office in a State who is affiliated with such party which exceeds— 8 "(A) in the case of a candidate for election to the 9 office of Senator, or of Representative from a State which is entitled to only one Representative, the greater of— 10 "(i) 2 cents multiplied by the voting age 11 population of the State (as certified under subsection (e) of this section); or 12 "(ii) $20,000; and 13 "(B) in the case of a candidate for election to the 14 office of Representative, Delegate, or Resident Commissioner in any other State, $10,000." It is evident from its terms that the section does not in so many words forbid the state or national party to designate agents for expenditure purposes. This much is common ground. The Court of Appeals, however, held that because § 441a(d)(3) permits expenditures in congressional campaigns to be made by national and state committees of the political parties, including subordinate committees of the latter, and because the NRSC was neither a national committee4 nor a state committee, it should not be permitted to make expenditures under any arrangement "by which the special authority of a named entity is transferred to another." 212 U.S.App.D.C., at 380, 660 F.2d, at 779. Obviously, § 441a(d)(3) does not permit the NRSC to make expenditures in its own right. But, contrary to the Court of Appeals, it does not follow that the NRSC may not act as an agent of a committee that is expressly authorized to make expenditures. In the nature of things, a committee must act through its employees and agents, as the Court of Appeals recognized, and nothing in the statute suggests that a state committee may not designate another committee to be its alter ego and to act in its behalf for the purposes of § 441a(d)(3). To foreclose such an arrangement on the grounds that the named agent is not one of the authorized spenders under § 441a(d)(3) would foreclose all agency agreements regardless of the identity of the agent and regardless of the terms of the agency.5 Nothing in the Act demands that the choices available to the state committee should be so severely restricted. 15 If the Court of Appeals is correct that any arrangement is forbidden by which an authorized committee empowers another to exercise its spending authority, then neither of the national committees could legally enter into agency relationships with its congressional campaign committees. Yet, both have regularly done so, and respondent DSCC does not challenge these arrangements. Indeed, the DSCC accepts the Commission's regulation, 11 CFR § 110.7 (1981),6 as valid and interprets that regulation as authorizing the agency agreements which have existed between the parties' national committees and the Republican and Democratic Senatorial Campaign Committees.7 Moreover, when the Commission, as required by law,8 submitted the regulation to Congress, neither House expressed disapproval. 16 Despite this indication that Congress does not look unfavorably upon the NRSC's sharing in the spending authority of § 441a(d)(3), the Court of Appeals reads such disapproval into Congress' failure to explicitly provide for such arrangements. To bolster its argument, the court points to § 441a(h),9 which directly authorizes the national party committees, including the Republican or Democratic Senatorial Campaign Committees, to contribute up to $17,500 to a senatorial candidate. This argument, if accepted, would only underline that the NRSC may not make additional expenditures on its own account. It does not answer the question whether a state committee may exercise its statutory spending authority by designating the NRSC as its agent for this purpose.10 17 Neither does the legislative history of the Act purport to disapprove agency arrangements. The Court of Appeals refers to the defeat of the Brock Amendment, which would have exempted congressional campaign committees such as the NRSC from the Act's expenditure limits.11 212 U.S.App.D.C., at 381, 660 F.2d, at 780. But rejection of a proposal to permit congressional campaign committees to make expenditures in their own right does not necessarily affect their capacity to perform agency functions. Moreover, insofar as the intent of Congress is reflected in its failure to adopt a proposed amendment, a contrary—and indeed stronger—inference can be found in the rejection by the 96th Congress of an amendment that would have expressly prohibited the movement of funds between state and national committees of a political party.12 18 It is clear enough to us without saying more that the statute does not expressly or by necessary implication foreclose the agency agreements at issue in this case. But neither does it expressly permit or require such agreements. If this were a direct enforcement action rather than the review of a decision by the administrative agency charged with the enforcement of the statute, it may be that a court could defensibly arrive at the conclusion that agency agreements of this kind should be forbidden. It may also be that the Commission could have construed the statute to forbid the agreements and that a court would have accepted such a construction by the agency. But that is not this case. The Commission, in dismissing the DSCC's complaint, has determined that agency agreements are not contrary to law and the question is whether the courts should defer to this judgment as a permissible construction of the Act or instead disregard the agency's view and proceed to construe the statute based on its own view of what would best serve the purpose and policy of the Act. III 19 The Court of Appeals determined that the Commission's construction of the Act was entitled to no deference whatsoever. While acknowledging that deference is often appropriately given to an agency's interpretation of its governing statute, the court refused to accord that deference here because of what it perceived as the lack of a reasoned and consistent explanation by the Commission in support of its decision. We agree that the thoroughness, validity, and consistency of an agency's reasoning are factors that bear upon the amount of deference to be given an agency's ruling. See Adamo Wrecking Co. v. United States, 434 U.S. 275, 287, n.5, 98 S.Ct. 566, 573, 54 L.Ed.2d 538 (1978); Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944). We do not agree, however, that the Commission failed to merit that deference in this case. 20 Initially, we note that the Commission is precisely the type of agency to which deference should presumptively be afforded. Congress has vested the Commission with "primary and substantial responsibility for administering and enforcing the Act," Buckley v. Valeo, 424 U.S. 1, 109, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976), providing the agency with "extensive rulemaking and adjudicative powers." Id., at 110, 96 S.Ct., at 678. It is authorized to "formulate general policy with respect to the administration of this Act," § 437d(a)(9), and has the "sole discretionary power" to determine in the first instance whether or not a civil violation of the Act has occurred. 424 U.S., at 112, n.153, 96 S.Ct., at 679. Moreover, the Commission is inherently bipartisan in that no more than three of its six voting members may be of the same political party, § 437c(a)(1), and it must decide issues charged with the dynamics of party politics, often under the pressure of an impending election. For these reasons, Congress wisely provided that the Commission's dismissal of a complaint should be reversed only if "contrary to law." § 437g(a)(8). 21 The Commission's position on the question before us is clear. Since 1976, it consistently has adhered to its construction of § 441a(d)(3) as not forbidding intraparty agency agreements. The Commission has on three separate occasions, all by unanimous votes, rejected the DSCC's claim. On each occasion the Commission followed the recommendation of its General Counsel. In his first report,13 the General Counsel emphasized the absence of any specific statutory prohibition of the agency arrangements, and also relied on § 441a(a)(4),14 which permits unlimited transfer of funds among state and national political committees of the same party. The second report,15 without rejecting any of the earlier arguments, also drew support from a Commission regulation approving similar agency agreements between national level committees.16 The third report,17 issued in this case, added an analysis of § 441a(d)(3), reviewed the legislative history, and took note of the fact that Congress had recently amended the Act with knowledge of the Commission's construction of § 441a(d)(3) and had let that construction stand. Unlike the Court of Appeals, we find the differences in emphasis in the three reports of little significance. All reach the same conclusion, none rejects the arguments of the others.18 The Commission consistently has upheld the agency agreements; the fact that Commission Counsel has had the luxury of a number of sound arguments on which to base his opinions does not detract from the deference due the agency's interpretations.19 Hence, in determining whether the Commission's action was "contrary to law," the task for the Court of Appeals was not to interpret the statute as it thought best but rather the narrower inquiry into whether the Commission's construction was "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); Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 2445, 57 L.Ed.2d 337 (1978). To satisfy this standard it is not necessary for a court to find that the agency's construction was the only reasonable one or even the reading the court would have reached if the question initially had arisen in a judicial proceeding. Ibid.; Udall v. Tallman, 380 U.S., at 16, 85 S.Ct., at 801; Unemployment Compensation Comm'n v. Aragan, 329 U.S. 143, 153, 67 S.Ct. 245, 250, 91 L.Ed. 136 (1946). Under this standard, we think the District Court was correct in accepting the Commission's judgment. 22 As we have said, § 441a(d) does not expressly or by implication forbid agency agreements. Although the Court of Appeals and the DSCC are of the view that since the section specifically authorized only two committees—the national and state party committees—to make campaign expenditures, no other committee could make such expenditures either on its own account or on behalf of others. But the opposite reading makes equal sense: Congress, having written the statute so precisely, would have made clear that expenditures by other committees, whether by agency or otherwise, were prohibited. 23 We also find acceptable the Commission's view that the agency agreements were logically consistent with § 441a(a)(4). That section authorizes the transfer of funds among national, state, and local committees of the same party. There can be little question but that the section applies to the National Republican Senatorial Committee, as that Committee is part of the Republican Party organization.20 Under that provision, by using direct money transfers, instead of an agency agreement, the national committee could write a check to the state committee for the same amount that it would otherwise have spent directly under the agency agreement. That being so, we agree with the dissent below that the difference is "purely one of form, not substance." 212 U.S.App.D.C., at 386, 660 F.2d, at 785. 24 Money transferred to the state committee presumably would be spent as the state committee decided. Agency agreements, by comparison, might allow the NRSC to determine what expenditures to make on behalf of the state committees. The Court of Appeals made much of this, asserting that the agency arrangements, unlike § 44771a(a)(4) transfers, reduced the state committees to "legal shells." The court overlooks that the NRSC easily could insist that funds transferred to a state committee be utilized in a certain manner. Conversely, state committees could retain or share control over how § 441a(d)(3) spending authority is exercised by writing conditions into the agency agreement. More fundamentally, state committees are not obligated to enter into agency agreements in the first place. The delegation of spending authority is an option, not a requirement, and it is an option resting entirely with the state committees. 25 Finally, the Commission's interpretation is not inconsistent with any discernible purpose of the Act. In Buckley v. Valeo, we recognized that the primary interest served by the Act is the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office. 424 U.S., at 25, 96 S.Ct., at 637. It has not been suggested that this basic purpose of the Act is compromised by agency arrangements. Since the limitations on the amount that can be spent under the Act apply with equal force whether a state committee exercises its authority directly or transfers it to one of the party's national committees, an agency arrangement does not permit the expenditure of a single additional dollar. 26 Section 441a(d)(3) fits into the general scheme by assuring that political parties will continue to have an important role in federal elections.21 Although the DSCC would transform this purpose into the more specific objective of stimulating political parties at the state level, none of the limited legislative history concerning the provision supports this view.22 The legislative discussion of preserving a role for political parties did not differentiate between the state and national branches of the party unit. It is hardly unreasonable to suppose that the political parties were fully capable of structuring their expenditures so as to achieve the greatest possible return. Agency agreements may permit all party committees to benefit from fundraising, media expertise, and economies of scale. In turn, effective use of party resources in support of party candidates may encourage candidate loyalty and responsiveness to the party. Indeed, the very posture of these cases betrays the weakness of respondent's argument—an argument that, at bottom, features one of the two great American political parties insisting that its rival requires judicial assistance in discovering how a legislative enactment operates to its benefit. 27 Thus, the absence of a prohibition on the agency arrangements at issue, the lack of a clearly enunciated legislative purpose to that effect, and indeed, the countervailing existence of a transfer mechanism whose presence is difficult to reconcile with the interpretation urged by the Court of Appeals, prevent us from finding that the Commission's determination was "contrary to law." Therefore, the judgment of the Court of Appeals is 28 Reversed. 29 Justice STEVENS, concurring. 30 The issue presented in this case is whether the National Republican Senatorial Committee (NRSC) violated the Federal Election Campaign Act, 2 U.S.C. § 441 et seq. (1976 ed. and Supp.IV), by making expenditures that state political committees are authorized to make under § 441a(d)(1). Section 441a(d)(1) authorizes "the national committee of a political party and a State committee of a political party, including any subordinate committee of a State committee," to make certain expenditures in connection with a candidate's general election campaign, subject to defined limitations. See § 441a(d)(3). Since the NRSC clearly is not "the national committee of a political party,"1 or "a State committee of a political party, including any subordinate committee of a State committee,"2 it is clear that nothing in § 441a(d)(3) limits the permissible expenditure of funds by the NRSC. 31 The NRSC is, however, a "political committee" as that term is defined in the statute.3 Section 441a(a)(2)(A) provides that no multicandidate political committee may make contributions to a candidate that exceed $5,000.4 Section 441a(h) provides, however, that "amounts totaling not more than $17,500 may be contributed to a candidate for nomination for election, or for election, to the United States Senate during the year in which an election is held in which he is such a candidate, by the Republican or Democratic Senatorial Campaign Committee. . . ." No section of the statute directly limits expenditures by the Republican or Democratic Senatorial Campaign Committees.5 However, § 441a(a)(7)(B)(i) provides that "expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate." 32 Thus, the only way that the NRSC could be said to have violated the statute in this case is if it made expenditures "in cooperation, consultation, or concert" with a candidate that exceeded $17,500. The record discloses that the NRSC in several instances made expenditures that exceeded $17,500. As I understand the record, however, it does not demonstrate that these expenditures were made in cooperation, consultation, or concert with the candidates. The record simply is silent on this point. 33 The only way that the NRSC could be said to have violated the statute, therefore, is if, as a matter of law, it is incapable of making expenditures that are not made in cooperation, consultation, or concert with a candidate. In other words, the NRSC could not be said to have violated the statute unless the NRSC is deemed as a matter of law to be an agent of the candidate on whose behalf it expends funds. If this is the case, however, it would appear to me to follow almost automatically that the NRSC may act as an agent for the state committees in spending the amounts that state committees are authorized to spend by § 441a(d), since state committees are largely controlled by the state candidates that they serve. It would seem incongruous to hold that the NRSC must be treated as an agent of a candidate when it makes expenditures, but may not act as a lawful agent of that candidate's state committee. 34 I concur fully in the conclusion of the Court that the agency relationship utilized in this case does not violate the Act, and I join its opinion subject only to the caveat that I am not entirely sure that the expenditures at issue in this case "otherwise would be impermissible," ante, at 28, and n.1. I assume, arguendo, that this is so, for otherwise petitioners would bear absolutely no burden to justify the expenditures made in this case.6 1 Expenditures by party committees are known as "coordinated" expenditures and are subject to the monetary limits of § 441a(d). See 6 FEC Record, No. 11, p. 6 (Nov. 1980). Party committees are considered incapable of making "independent" expenditures in connection with the campaigns of their party's candidates. The Commission has, by regulation, forbidden such "independent" expenditures by the national and state party committees, 11 C.F.R. § 110.7(B)(4) (1981), and has indicated in this litigation that the congressional campaign committees fall within that prohibition. See Brief for Petitioner Federal Election Commission in No. 80-2074 (CADC), p. 10, n. 5 ("[p]arty committees . . . are deemed incapable of making independent expenditures"); Brief for Petitioner in No. 80-939, p. 38 ("NRSC is a party committee"). Thus, as the Commission admits: "Absent § 441a(d), party committees could make no expenditures whatsoever in connection with the Congressional campaigns of their party's candidates." Brief for Petitioner Federal Election Commission in No. 80-2074 (CADC), p. 10, n. 5. 2 In the 1978 senatorial elections, the NRSC spent a total of $2,770,995 under the combined spending authority of the national and state party committees. Jt.App. in No. 80-2074 (CADC), p. 105. 3 This section provides that "[a]ny party aggrieved" by the Commission's dismissal of a complaint may petition the United States District Court for the District of Columbia which "may declare that the dismissal of the complaint or the action, or the failure to act, is contrary to law" and order the Commission to conform with the court's declaration. 4 The RNC, not the NRSC, is the "national committee" as defined by 2 U.S.C. § 431(14) (1976 ed., Supp.IV): "the organization . . . responsible for the day-to-day operation of such political party at the national level." 5 The Court of Appeals' suggests that it is misleading to characterize the agreements as ones of "agency" because the state committees do not direct how funds are to be raised and spent. We do not understand the lack of such control to be inherent in these arrangements, nor dispositive in deciding whether such agreements can be made under the Act. See infra, at 41. See also n. 6, infra. 6 The regulation, 11 CFR § 110.7(a)(1) (1981), allows the "national committee of a political party [to] make expenditures in connection with the general election campaign of any candidate for President . . . affiliated with the party," up to "an amount equal to 2 cents multiplied by the voting age population of the United States," the amount authorized by § 441a(d)(2). These expenditures may be made "through any designated agent, including State and subordinate committees." The regulation goes on to authorize the national committee to make expenditures on behalf of congressional and senatorial candidates of the party. While the regulation directly authorizes transfers of spending authority only with respect to Presidential campaign expenditures, the significance of the regulation is that it clearly demonstrates that § 441a(d) expenditures do not have to be made directly by the committee specified in the statute. 7 In its brief before the Court of Appeals, the DSCC expressly stated that it "does not challenge this regulation or the NRSC's role as agent of the Republican National Committee." See Brief for Appellant DSCC in No. 80-2074 (CADC), p. 20, n. 16. 8 The Act requires that before prescribing any rule or regulation the Commission shall transmit the proposed rule and an accompanying statement to the Senate and the House. If neither House disapproves the proposed rule within 30 legislative days, the Commission may proceed to issue the rule. § 438(d). 9 Section 441a(h) authorizes the "Republican or Democratic Senatorial Campaign Committee, or the national committee of a political party, or any combination of such committees" to contribute "not more than $17,500" to a senatorial candidate. 10 By its terms, the provision does not restrict a senatorial campaign committee from making expenditures on behalf of other committees. 11 During the 1974 legislative debates, Senator Brock proposed an amendment that would have exempted congressional campaign committees from the expenditure limitations of the Act. 120 Cong.Rec. 9549-9551 (1974). The Senate initially adopted the amendment, but reversed itself five days later. Id., at 10062-10064. 12 Section 113 of H.R. 11315 would have prohibited any "movement of funds" between "the political committees of a national political party (including House and Senate congressional campaign committees of such party) and the political committees of a State committee of a political party . . . for the purpose of making contributions to, or expenditures on behalf of, any candidate for Federal office." H.R. 11315, 95th Cong., 2d Sess. (1978). The House rejected a rule for consideration of the bill, 124 Cong.Rec. 7872-7880 (1978). The basis for the rejection may be seen in various comments attacking the bill. Representative Stockman saw the proposed amendment as a "fundamental assault on . . . the continued meaningful role of our political parties." Id., at 7875. Representative Mikva stated that he "deeply regret[ted] that the committee . . . saw fit to change the party financing." Id., at 7876. 13 See First General Counsel's Report, MUR 780 (Jan. 19, 1978). 14 This section provides that the limitations on contributions to and by political committees found in §§ 441a(a)(1) and (2) "do not apply to transfers between and among political committees which are national, State, district, or local committees (including any subordinate committee thereof) of the same political party." 15 See First General Counsel's Report, MUR 820 (June 19, 1978). 16 See 11 CFR § 110.7 (1981), supra n.6. 17 See First General Counsel's Report, MUR 1234 (July 11, 1980). 18 The assertion by the Court of Appeals that the Commission has disavowed the relevance of 11 CFR § 110.7 (1981) in its brief before that court, 212 U.S.App.D.C. 374, 378, 660 F.2d 773, 777, is belied by its incorporation in the Commission's brief before this Court. See Brief for Petitioner in No. 939, p. 35. 19 Nor does the fact that the Commission, following its customary practice, did not expressly adopt the General Counsel's report in announcing its decision "depriv[e] a reviewing court of any Commission record on which to base a deferential decision." 212 U.S.App.D.C., at 378, 660 F.2d, at 777. The Court of Appeals previously has held that the General Counsel's report to the Commission is sufficient to support the Commission's dismissal of a complaint. See Hampton v. Federal Election Comm'n, 2 Fed.Elec.Camp.Fin.Guide (CCH) ¶ 9036, pp. 50, 439-50, 440 (DC 1977), aff'd, No. 77-1546 (CADC July 21, 1978). In this case, the General Counsel's report was made public simultaneously with the Commission's ruling. It was the third occasion on which the Commission followed the General Counsel's advice in this matter. Even without an express statement, it is sufficiently clear that the staff report provides the basis for the Commission's action. 20 Section 441a(a)(4) applies to "political committees which are national, state, district or local committees (including any subordinate committee thereof) of the same political party." The DSCC does not challenge the applicability of the transfer provision to national senatorial committees. At one point, the Court of Appeals refused to address the issue for that reason. See 212 U.S.App.D.C., at 382, 660 F.2d, at 781 (the "issue was not joined before this court"). At another point, however, the court expressed "some doubt" whether § 441a(a)(4) encompasses congressional committees. Surely that doubt must be minimal in light of the broad scope of the statutory language, the fact that senatorial campaign committees are identifiable as part of their respective party, see Cong.Rec. 9552 (1974) (remarks of Sen. Baker), and the Congress' clear intent to include such committees within the scope of §§ 441a(a)(1)-(2), to which § 441a(a)(4) serves as an exception. See H.R.Conf.Rep.No.94-1057, p. 58 (1976); U.S.Code Cong. & Admin.News 1976, p. 929 ("the term 'political committee established or maintained by a national political party' includes the Senate and House Campaign Committees"). A committee "established or maintained" by a national party would appear to fall squarely within the reach of § 441a(a)(4). Indeed, if congressional campaign committees were not considered as part of the national party, their ability to make independent expenditures would seem to escape any limitation prescribed by the Act. See n.1, supra. 21 See S.Rep.No.93-689, p. 7 (1974), reprinted in Legislative History of the Federal Election Campaign Act Amendments of 1974, p. 103 (1977). 22 It should be remembered that the section was considered at a time when Congress contemplated total public funding of general election campaigns for federal office. See § 101, S. 3044, 93d Cong., 2d Sess., 71-78 (1974). In that context, statements in Congress about the need to preserve the role of party committees, see, e. g., 120 Cong.Rec. 34372 (1974) (remarks of Sen. Cannon); id., at 35136 (remarks of Rep. Frenzel), are properly read as expressing concern over the function of political parties under public campaign finance rather than concern with the role of state committees vis-a-vis party committees at the national level. Thus, by allowing for the pooling of campaign funds, agency agreements increase party resources "to conduct party-wide election efforts." S.Rep.No.93-689, supra, at 8, reprinted in Legislative History of the Federal Election Campaign Act Amendments of 1974, supra, at 104. 1 Section 431(14) defines the term "national committee" as "the organization which, by virtue of the bylaws of a political party, is responsible for the day-to-day operation of such political party at the national level, as determined by the Commission." 2 U.S.C. § 431(14) (1976 ed., Supp.IV). 2 Section 431(15) defines the term "State committee" as "the organization which, by virtue of the bylaws of a political party, is responsible for the day-to-day operation of such political party at the State level, as determined by the Commission." 2 U.S.C. § 431(15) (1976 ed., Supp.IV). 3 Section 431(4) defines the term "political committee" as— "(A) any committee, club, association, or other group of persons which receives contributions aggregating in excess of $1,000 during a calendar year or which makes expenditures aggregating in excess of $1,000 during a calendar year. . . ." 2 U.S.C. § 431(4) (1976 ed., Supp.IV). 4 Section 441a(a)(2)(A) provides: "No multicandidate political committee shall make contributions— "(A) to any candidate and his authorized political committees with respect to any election for Federal office which, in the aggregate, exceed $5,000." 2 U.S.C. § 441a(a)(2)(A). 5 The Act carefully distinguishes between "contributions" and "expenditures." See § 431(8) (defining the term "contribution"); § 431(9) (defining the term "expenditure"). 6 Moreover, this case would have been much easier for me to decide if the parties had begun their presentations with an appropriate explanation of the relevant provisions of the statute instead of an unstated assumption that is not entirely obvious.

23

454 U.S. 46 102 S.Ct. 49 70 L.Ed.2d 39 Donna RIDGWAY and Prudential Insurance Company of America, Petitionersv.Hayley D. RIDGWAY et al. No. 80-1070. Argued Oct. 7, 1981. Decided Nov. 10, 1981. Syllabus When Army Sergeant Ridgway and his first wife, April, were granted a divorce by a Maine court, the decree, inter alia, ordered Ridgway to keep in force the insurance policies on his life then outstanding for the benefit of the Ridgways' three children. At the time of the divorce, the sergeant's life was insured under a $20,000 policy issued by petitioner Prudential Insurance Co. of America (Prudential) pursuant to the Servicemen's Group Life Insurance Act of 1965 (SGLIA), and April was the designated beneficiary. Subsequently, Ridgway married petitioner Donna, and changed the policy's beneficiary designation to one directing that the proceeds be paid as specified "by law," which meant that under the SGLIA the proceeds would be paid to the insured's "widow," i. e., his "lawful spouse . . . at the time of his death." Thereafter, Ridgway died, survived by Donna as his lawful wife. After April and Donna had both filed claims to the policy proceeds, April instituted suit in Maine Superior Court against Prudential, seeking to enjoin payment of the proceeds to Donna and to obtain a declaratory judgment that the proceeds were payable to the children under the divorce decree. Donna joined the suit as a plaintiff asserting a claim to the proceeds based on the beneficiary designation and her status as Ridgway's widow. April filed a cross-claim, praying for the imposition of a constructive trust for the children's benefit on any proceeds paid to Donna. The Superior Court rejected April's claims, taking the view that a constructive trust would interfere with the operation of the SGLIA and thus would run afoul of the Supremacy Clause. The Maine Supreme Judicial Court vacated the dismissal of April's cross-claim, and remanded with directions to enter an order naming Donna as constructive trustee of the policy proceeds. Held: The insured's beneficiary designation under the SGLIA policy prevails over the constructive trust imposed upon the policy proceeds by the state court. Pp. 53-63. (a) As a consequence of the Supremacy Clause, a state divorce decree, like other law governing the economic aspects of domestic relations, must give way to clearly conflicting federal enactments. Here, the provisions of the SGLIA according the insured service member the right freely to designate the beneficiary and to alter that choice at any time by communicating the decision in writing to the proper office prevail over and displace inconsistent state law. Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424, controlling; Yiatchos v. Yiatchos, 376 U.S. 306, 84 S.Ct. 742, 11 L.Ed.2d 724, distinguished. Pp. 53-60. (b) The imposition of a constructive trust upon the insurance proceeds is also inconsistent with the provision of the SGLIA which, in addition to exempting policy proceeds "from the claims of creditors," prohibits any "attachment, levy, or seizure by or under any legal or equitable process whatever," whether accomplished "either before or after receipt by the beneficiary." Any diversion of the proceeds of the policy by means of a court-imposed constructive trust would operate as a forbidden "seizure" of those proceeds. Pp. 60-61. 419 A.2d 1030, reversed. Stephen P. Beale, Lewiston, Me., for petitioners. Joshua I. Schwartz, Asst. Sol. Gen., Washington, D. C., for United States as amicus curiae by special leave of Court. Curtis Webber, Auburn, Me., for respondents. Justice BLACKMUN delivered the opinion of the Court. 1 This case presents the issue whether an insured serviceman's beneficiary designation under a life policy issued pursuant to the Servicemen's Group Life Insurance Act of 1965 (SGLIA), Pub.L. 89-214, 79 Stat. 880, prevails over a constructive trust imposed upon the policy proceeds by a state-court decree. 2 * The Facts 3 Richard H. Ridgway was a career sergeant in the United States Army. April D. Ridgway was his wife. Richard and April were the parents of three children, Hayley, Laurie, and Brady, all minors. The Ridgways' marriage, however, ended with a divorce granted by a Maine court on December 7, 1977. The state divorce judgment, entered on April's complaint and apparently following property settlement negotiations, ordered Richard, among other things, to pay specified amounts monthly for the support of the three children. App. 13. It also ordered him 4 "to keep in force the life insurance policies on his life now outstanding for the benefit of the parties' three children. If any of such insurance policies should subsequently be terminated for any reason, defendant shall immediately replace it with other life insurance of equal amount for the benefit of the children." Id., at 14. 5 Sergeant Ridgway's life was then insured under a $20,000 policy issued by Prudential Insurance Company of America pursuant to a group contract with the Administrator of Veterans' Affairs. At the time of the Ridgways' divorce, April was the designated beneficiary of that policy. 6 On March 28, 1978, less than four months after the divorce, Ridgway married his second wife, Donna, the individual petitioner here. Six days later, the sergeant, as insured, changed the policy's beneficiary designation to one directing that its proceeds be paid as specified "by law." This referred to the statutory order of beneficiary precedence set forth in 38 U.S.C. § 770(a). See also 38 CFR § 9.16(i) (1980). Under that statutory prescription, the policy proceeds, in the event of Ridgway's death, would be paid to his "widow," that is, his "lawful spouse . . . at the time of his death." 38 U.S.C. § 765(7). 7 Sergeant Ridgway died on January 5, 1979. Donna survived him and was his lawful wife at the time of his death. Both April and Donna filed claims for the proceeds of the policy. April based her claim, which was on behalf of the children, on the divorce decree. Donna's claim rested on the beneficiary designation and her status as Ridgway's widow. 8 April thereafter instituted the present suit in the Superior Court for Androscoggin County, Me. As legal representative of the three minor children, she sued Prudential, seeking both to enjoin the payment of the policy proceeds to Donna, and to obtain a declaratory judgment that those proceeds were payable to the children. Donna joined the litigation and was aligned as a plaintiff asserting a claim to the proceeds. April then filed a cross-claim against Donna, praying for the imposition of a constructive trust, for the benefit of the children, on any policy proceeds paid to Donna. Prudential supported Donna's position. 9 The Superior Court rejected April Ridgway's claims. It acknowledged that the terms of the judgment of divorce and the beneficiary designation were inconsistent.1 But it felt that the imposition of a constructive trust would interfere with the operation of the federal SGLIA, and that such a disposition would therefore run afoul of the Supremacy Clause, U.S.Const., Art. VI, cl. 2. App. 38-43. 10 On the ensuing appeal to the Supreme Judicial Court of Maine, the parties stipulated, inasmuch as the policy proceeds by that time had been deposited in court, that the sole issue was "[w]hether or not the presiding justice erred in ruling that, on the basis of the facts found, he could not impose a constructive trust on the proceeds of Sergeant Ridgway's insurance." Id., at 48. That court, sympathetic to April, vacated the Superior Court's dismissal of her cross-claim, and remanded the case with directions to enter an order naming Donna as constructive trustee of the policy proceeds. The Court Clerk, who held the proceeds, was directed to pay them to April for and on behalf of the three children. Ridgway v. Prudential Ins. Co. of America, 419 A.2d 1030, 1035 (Maine 1980). 11 We granted certiorari, 450 U.S. 979, 101 S.Ct. 1512, 67 L.Ed.2d 813 (1981), to review the important issue presented by the case. II The Statutory Background 12 In order to make life insurance coverage available to members of the uniformed services on active duty, particularly in combat zones, Congress in 1965 enacted the SGLIA. See H.R.Rep.No.1003, 89th Cong., 1st Sess., 7 (1965), U.S.Code Cong. & Admin.News 1965, 3232. The impetus for the legislation was the escalating level of hostilities and casualties in the then ongoing Vietnam conflict; this had prompted private commercial insurers to restrict coverage for service members.2 See 111 Cong.Rec. 24339 (1965) (remarks of Rep. Teague, Chairman of the House Committee on Veterans' Affairs); see also S.Rep.No.619, 89th Cong., 1st Sess., 3 (1965). The earlier program of federally sponsored life insurance for service members, see National Service Life Insurance Act of 1940, 54 Stat. 1008, and National Service Life Insurance Act of 1958, as amended, 38 U.S.C. § 701 et seq. (NSLIA), placed in effect shortly before the involvement of this country in World War II, had been allowed to lapse after the end of the Korean hostilities when commercial insurance generally became available to service members.3 Accordingly, NSLIA coverage could not be obtained by many service members on active duty in 1965. See 111 Cong.Rec. 24339 (1965) (remarks of Rep. Teague). 13 Although its purposes and provisions resemble those of the NSLIA in many respects, the SGLIA differs from the predecessor program in that it directs the Administrator of Veterans' Affairs to purchase coverage from one or more qualified commercial insurers instead of offering coverage by the United States itself. See 38 U.S.C. § 766. Thus, under the SGLIA, the Government is the policyholder, rather than the insurer. The Administrator has contracted with petitioner Prudential Insurance Company of America, which now serves as the primary insurer under the SGLIA and which operates, under Veterans' Administration supervision and pursuant to 38 U.S.C. § 766(b), the Office of Servicemen's Group Life Insurance in Newark, N. J. 14 The SGLIA initially provided insurance only for members serving in specified services. 79 Stat. 880. The maximum coverage allowed was then $10,000. Id., at 881. Since 1965, however, statutory changes have expanded both eligibility for coverage and the amount of insurance available.4 The program is operated on a presumptive enrollment basis; coverage is provided automatically and premiums are withheld from the service member's pay, unless the insurance is expressly declined or is terminated by written election. 38 U.S.C. §§ 767(a) and 769.5 15 In order to make the insurance available through a commercial carrier at a reasonable rate, notwithstanding the special mortality risks that service members often must assume, Congress undertook to subsidize the program. See S.Rep.No.91-398, p. 2 (1969), U.S.Code Cong. & Admin.News 1970, 3317. A sum representing the extra premium for special mortality risks is periodically deposited by the United States into a revolving fund that is used to pay premiums on the master policy. See 38 U.S.C. §§ 769(b) and (d)(1). The fund otherwise is derived primarily from deductions withheld from service members' pay. §§ 769(a)(1) and (d)(1). Accordingly, depending upon the conditions faced by service members at any given time, the program may be financed in part with federal funds. See S.Rep.No.91-398, at 2. 16 The SGLIA establishes a specified "order of precedence," 38 U.S.C. § 770(a), for policy beneficiaries. By this statutory provision, the proceeds of a policy are paid first to such "beneficiary or beneficiaries as the member . . . may have designated by [an appropriately filed] writing received prior to death." If there be no such designated beneficiary, the proceeds go to the widow or widower of the service member or, if there also be no widow or widower, "to the child or children of such member . . . and descendants of deceased children by representation." Parents, and then the representative of the insured's estate (an obvious bow at this point in the direction of state law), are next in order. Ibid. See also 38 CFR § 9.16(i) (1980). 17 In 1970, by Pub.L. 91-291, § 5, 84 Stat. 330, Congress added an anti-attachment provision. With certain exceptions not applicable here, this provision shields payments made under § 770(a) "from taxation" and from "claims of creditors," and states that the payments "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." § 770(g). 18 Pursuant to his general rulemaking authority over veterans' programs, § 210(c)(1), the Administrator has promulgated regulations implementing the SGLIA. These provide that the insured "may designate any person, firm, corporation or legal entity" as a policy beneficiary, and any such "designation or change of beneficiary . . . will take effect only if it is in writing, signed by the insured and received [by the appropriate office] prior to the death of the insured." 38 CFR §§ 9.16(a) and (d) (1980). A change of beneficiary "may be made at any time and without the knowledge or consent of the previous beneficiary." § 9.16(e). And "[n]o change or cancellation of beneficiary . . . in a last will or testament, or in any other document shall have any force or effect unless such change is received by the appropriate office." § 9.16(f). III 19 The foregoing description of the statutory plan adopted by Congress, and implemented by the Administrator's regulations, demonstrates the pervasive and detailed characteristics of the congressional specifications. The obvious and stated concern of Congress was to provide coverage for the member, no matter how hazardous the duty, and thus protection for the member's designated beneficiaries. The legislation itself says nothing about contrary dictates of state law or state judgments. 20 The Supreme Judicial Court of Maine, however, concluded that the order of beneficiary precedence set forth in 38 U.S.C. § 770(a) "does not reflect any federal interest in permitting a serviceman to evade the responsibility to provide for his minor children imposed both by virtue of his voluntary agreement and by the express provision of a valid state court decree." 419 A.2d, at 1033. That court further concluded that the anti-attachment provision, § 770(g), "has no application to the instant case since its purpose is to protect the proceeds of the insurance from the claims of creditors." It pointed out that it was concerned "not with the claim of a creditor but with the claims of minor children who assert an equitable interest in the proceeds arising from their deceased father's voluntary agreement and a valid judicial decree." Thus, it said, the accomplishment of the objectives of the federal statute "is neither obstructed nor interfered with by imposing a constructive trust on the insurance proceeds." Ibid. 21 We forthwith acknowledge, of course, that this Court's "only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights." Herb v. Pitcairn, 324 U.S. 117, 125-126, 65 S.Ct. 459, 462-63, 89 L.Ed. 789 (1945). It follows that the decision of the Supreme Judicial Court of Maine is subject to disturbance here only to the extent that it fails to honor federal rights and duties. 22 Notwithstanding the limited application of federal law in the field of domestic relations generally, see McCarty v. McCarty, 453 U.S. 210, 220, 101 S.Ct. 2728, 2735, 69 L.Ed.2d 589 (1981); Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 808, 59 L.Ed.2d 1 (1979); In re Burrus, 136 U.S. 586, 593-594, 10 S.Ct. 850, 852-853, 34 L.Ed. 500 (1890), this Court, even in that area, has not hesitated to protect, under the Supremacy Clause, rights and expectancies established by federal law against the operation of state law, or to prevent the frustration and erosion of the congressional policy embodied in the federal rights. See McCarty v. McCarty, supra; Hisquierdo v. Hisquierdo, supra; 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); McCune v. Essig, 199 U.S. 382, 26 S.Ct. 78, 50 L.Ed. 237 (1905). Cf. Yiatchos v. Yiatchos, 376 U.S. 306, 309, 84 S.Ct. 742, 744, 11 L.Ed.2d 724 (1964). While "[s]tate 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," Hisquierdo, 439 U.S., at 581, 99 S.Ct., at 808, with references to United States v. Yazell, 382 U.S. 341, 352, 86 S.Ct. 500, 506, 15 L.Ed.2d 404 (1966), "[t]he relative importance to the State of its own law is not material when there is a conflict with a valid federal law, for the Framers of our Constitution provided that the federal law must prevail." Free v. Bland, 369 U.S., at 666, 82 S.Ct., at 1092. See also Gibbons v. Ogden, 9 Wheat. 1, 210-211, 6 L.Ed. 23 (1824). And, specifically, a state divorce decree, like other law governing the economic aspects of domestic relations, must give way to clearly conflicting federal enactments. McCarty v. McCarty, supra; Hisquierdo v. Hisquierdo, supra. That principle is but the necessary consequence of the Supremacy Clause of our National Constitution. 23 In Wissner v. Wissner, supra, an insured under an NSLIA policy named his parents as beneficiaries. Upon his death, the serviceman's widow claimed community property rights in the policy proceeds. The NSLIA specifically provided that the insured had the right to designate and to change the beneficiary. It also had an anti-attachment clause. Despite these provisions, a California court held that the policy proceeds were community property, and it ordered half the proceeds paid to the widow. This Court reversed, noting that "Congress has spoken with force and clarity in directing that the proceeds belong to the named beneficiary and no other." 338 U.S., at 658, 70 S.Ct., at 399. Further, "the judgment below nullifies the soldier's choice and frustrates the deliberate purpose of Congress. It cannot stand." Id., at 659, 70 S.Ct., at 400. And the diversion, as directed by the state court, of future payments to be received by the beneficiary would be a "seizure" prohibited by the anti-attachment provision. Ibid. These are strong words and a positive ruling. 24 The same approach has been followed in later cases: Free v. Bland, supra, concerning the right of survivorship in United States Savings Bonds issued in co-ownership form; Hisquierdo v. Hisquierdo, supra, involving the Railroad Retirement Act of 1974, 45 U.S.C. § 231 et seq.; and McCarty v. McCarty, supra, concerning military retired pay. 25 The present case, we feel, is controlled by Wissner. Under §§ 717(a) and 770(a) of the SGLIA, just as under § 602(g) of the predecessor NSLIA, 54 Stat. 1010, at issue in Wissner, the insured service member possesses the right freely to designate the beneficiary and to alter that choice at any time by communicating the decision in writing to the proper office. 338 U.S., at 658, 70 S.Ct., at 399. Here, as there, it appropriately may be said: "Congress has spoken with force and clarity in directing that the proceeds belong to the named beneficiary and no other." 26 There can be no doubt that Congress was aware of the breadth of the freedom of choice accorded the service member under the SGLIA. The pertinent House Report stated flatly: "The serviceman may designate any person as a beneficiary," H.R.Rep.No.1003, 89th Cong., 1st Sess., 7 (1965), U.S.Code Cong. & Admin.News 1965, 3233, and the point was emphasized on the floor of the House by Representative Everett: "This bill permits you to leave your insurance to your church, to your college, to your best friend. The beneficiary provision is wide open under this option." 111 Cong.Rec. 24341 (1965). Thus, the Maine court's analysis is inconsistent both with the language of the Act and with its legislative history.6 27 Neither respondents nor the Supreme Judicial Court of Maine has questioned the authority of Congress to control payment of the proceeds of SGLIA policies. Indeed, this Court observed in Wissner : 28 "Possession of government insurance, payable to the relative of his choice, might well directly enhance the morale of the serviceman. The exemption provision is his guarantee of the complete and full performance of the contract to the exclusion of conflicting claims. The end is a legitimate one within the congressional powers over national defense, and the means are adapted to the chosen end." 338 U.S., at 660-661, 70 S.Ct., at 400-401. 29 The federal interest is especially strong because a substantial share of the proceeds of an SGLIA policy may be attributable to general tax revenues. 30 There are, to be sure, some small differences between the SGLIA and the predecessor NSLIA. In the provision granting the service member the right to designate the beneficiary, the words "at all times" appear in the earlier Act, 38 U.S.C. § 717(a), but not in the later one, 38 U.S.C. § 770(a), and the right to change the beneficiary "without the consent" of the one presently named is spelled out in § 717(a) but not in § 770(a). But the later Act's unqualified directive to pay the proceeds to the properly designated beneficiary clearly suggests that no different result was intended by Congress. And any possible ambiguity was eliminated by the Administrator's regulations that provide that a "change of beneficiary may be made at any time and without the knowledge or consent of the previous beneficiary." 38 CFR § 9.16(e) (1980). There has been no suggestion that these regulations are unreasonable, unauthorized, or inconsistent with the SGLIA, and such a suggestion would not be supportable.7 See Whirlpool Corp. v. Marshall, 445 U.S. 1, 11-13, 100 S.Ct. 883, 890-891, 63 L.Ed.2d 154 (1980); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). 31 Yiatchos v. Yiatchos, 376 U.S. 306, 84 S.Ct. 742, 11 L.Ed.2d 724 (1964), relied on by the respondents, but not cited by the Maine court, does not stand to the contrary. In Yiatchos, the Court considered a question left open in Free v. Bland, 369 U.S., at 670-671, 82 S.Ct., at 1094, namely, the "scope and application" of the doctrine of fraud as an exception "to the regulatory imperative." 376 U.S., at 307, 84 S.Ct., at 744. There, the decedent Yiatchos, a resident of a community property State, purchased United States Savings Bonds with community funds and had them issued in the name of the decedent but payable on his death to his brother. The state court held that this purchase "was in fraud of the rights" of the surviving wife, as "a void endeavor to divest the wife of any interest in her own property." In re Yiatchos' Estate, 60 Wash.2d 179, 181-182, 373 P.2d 125, 127 (1962). This Court agreed that the bonds could "not be used as a device to deprive the widow of property rights which she enjoys under Washington law." 376 U.S., at 309, 84 S.Ct., at 745. But because the named beneficiary was entitled to the bonds "unless his deceased brother committed fraud or breach of trust tantamount to fraud" by wrongfully disposing of the wife's property, ibid., the case was remanded to give the widow an opportunity to demonstrate that she had not consented to or ratified the purchase and registration of the bonds. The remand was also for the determination, under state law, whether the widow had an interest in the community's specific assets, or only a half interest in the estate generally. 32 Here, in contrast, Sergeant Ridgway's conduct did not amount to breach of trust or conversion of another's property. A careful reading of the complaint and the amended complaint, App. 11 and 24, in this case reveals no allegation of fraud or breach of trust. And we are not inclined to provide or infer such an allegation when a case comes to us, as this one does, with the record indicating nothing more than a breach of contract on the part of the deceased service member. Indeed, to say that this type of conduct constitutes constructive fraud would be to open the policy proceeds to a suit by any commercial creditor, a result that would render § 770(g) nugatory. As the trial court intimated, respondents may have a claim against the insured's estate for that breach; the record does not disclose whether a claim of that kind would be collectible.8 33 There is, finally, a fundamental distinction between respondents' asserted interests in the SGLIA policy proceeds and the community property concepts at issue in Yiatchos. Federal law and federal regulations bestow upon the service member an absolute right to designate the policy beneficiary. That right is personal to the member alone. It is not a shared asset subject to the interests of another, as is community property. Yiatchos had imposed his will upon property in which his wife had a distinct vested community interest. In contrast, only Sergeant Ridgway had the power to create and change a beneficiary interest in his SGLIA insurance. By exercising that power, he hardly can be said to have committed fraud. 34 We conclude, therefore, that the controlling provisions of the SGLIA prevail over and displace inconsistent state law.9 IV 35 The imposition of a constructive trust upon the insurance proceeds is also inconsistent with the anti-attachment provision, 38 U.S.C. § 770(g), of the SGLIA. In Wissner, 338 U.S., at 659, 70 S.Ct., at 400, this Court invoked the identical anti-attachment provision of the NSLIA as an independent ground for the result reached in that case. The Court rejected, as it did so, id., at 663-664, 70 S.Ct., at 402, the dissent's argument that "Congress was interested in protecting [the fund], not the beneficiary," which parallels respondents' argument here in favor of creating a constructive trust after the proceeds have been received by the beneficiary. Any diversion of the proceeds of Sergeant Ridgway's SGLIA policy by means of a court-imposed constructive trust would therefore operate as a forbidden "seizure" of those proceeds. 36 The Maine court attempted to limit the reach of § 770(g), as has been noted above, on the theory that the purpose of the anti-attachment provision was to protect the policy proceeds from the claims of creditors, and that the provision has no application to minor children asserting equitable interests. 419 A.2d, at 1033. This contention, however, fails to give effect to the unqualified sweep of the federal statute. Section 770(g), in addition to exempting the policy proceeds "from the claims of creditors," prohibits, in the broadest of terms, any "attachment, levy, or seizure by or under any legal or equitable process whatever," whether accomplished "either before or after receipt by the beneficiary." The reading adopted by the Maine court renders the bulk of the quoted statutory text extraneous. What was said of the statute under consideration in Hisquierdo, supra, is applicable without qualification here: 37 "Like anti-attachment provisions generally [citing Wissner], 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'. . . . It prevents the vagaries of state law from disrupting the national scheme, and guarantees a national uniformity that enhances the effectiveness of congressional policy." 439 U.S., at 584, 99 S.Ct., at 809.10 38 We find nothing to indicate that Congress intended to exempt claims based on property settlement agreements from the strong language of the anti-attachment provision.11 V 39 We recognize that this unpalatable case suggests certain "equities" in favor of the respondent minor children and their mother. Sergeant Ridgway did have specific obligations to the children that were imposed by the 1977 divorce judgment of the Maine court. Those obligations not only concerned life insurance "now outstanding" for the benefit of the children, but also extended to their support, to clothing, to "medical, dental, and optical expense," and to certain loans and other indebtedness. App. 13-15. Ridgway, instead, chose to name his then new wife as beneficiary of his SGLIA policy.12 40 A result of this kind, of course, may be avoided if Congress chooses to avoid it. It is within Congress' power. Thus far, however, Congress has insulated the proceeds of SGLIA insurance from attack or seizure by any claimant other than the beneficiary designated by the insured or the one first in line under the statutory order of precedence. That is Congress' choice. It remains effective until legislation providing otherwise is enacted. 41 The judgment of the Supreme Judicial Court of Maine is 42 Reversed. 43 Justice O'CONNOR took no part in the consideration or decision of this case. 44 Justice POWELL, with whom Justice REHNQUIST joins, dissenting. 45 The Court holds that the Servicemen's Group Life Insurance Act of 1965 (SGLIA or Act) broadly pre-empts state law. The Court also finds, as it must in light of previous decisions, that the pre-emptive power of this Act does not extend to cases of fraud or breach of trust. Ante, at ----, citing Yiatchos v. Yiatchos, 376 U.S. 306, 309, 84 S.Ct. 742, 744, 11 L.Ed.2d 724 (1964).1 See also Free v. Bland, 369 U.S. 663, 670, 82 S.Ct. 1089, 1094, 8 L.Ed.2d 180 (1962) (pre-emption may not be used to create a "sanctuary for a wrongdoer's gains"); Hisquierdo v. Hisquierdo, 439 U.S. 572, 582, 99 S.Ct. 802, 808, 59 L.Ed.2d 1 (1979) (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 ") (emphasis added). 46 The Court concludes, however, that there is not even an "allegation of fraud or breach of trust" in this case: 47 "Sergeant Ridgway's conduct did not amount to breach of trust or conversion of another's property. A careful reading of the complaint and the amended complaint, App. 11 and 24, in this case reveals no allegation of fraud or breach of trust. And we are not inclined to provide or infer such an allegation when a case comes to us, as this one does, with the record indicating nothing more than a breach of contract on the part of the deceased service member." Ante, at 58-59. 48 * In reaching the conclusion that this case presents "nothing more than a breach of contract," the Court's opinion does not linger over the facts.2 The decree divorcing Richard from his first wife April and incorporating the agreement of the parties was entered on December 7, 1977. The agreement required several months to negotiate, and it was negotiated in detail. April received custody of the couple's three children. Richard was entitled to claim one child as a tax exemption in 1977 and two in 1978. He was to make specified monthly support payments beginning in 1978 and increasing in 1979. Although Richard was to pay for his children's medical and dental expenses, April agreed to incur them, to the extent possible, "so that they will be payable under [Richard's] serviceman's insurance." App. 14. In addition to other particular exchanges and responsibilities, the settlement specified and the decree ordered: 49 "Defendant [Richard] is ordered to keep in force the life insurance policies on his life now outstanding for the benefit of the parties' three children. If any of such insurance policies should subsequently be terminated for any reason, defendant shall immediately replace it with other life insurance of equal amount for the benefit of the children." Ibid. (emphasis added).3 50 Less than four months later, Richard remarried and promptly changed the beneficiary clause of his serviceman's policy so that the entire insurance proceeds would go to his new wife, Donna. 51 I return to the Court's view that the complaint makes "no allegation of fraud or breach of trust," and that this is a simple case involving "nothing more than a breach of contract" by Richard. Ante, at 59. Perhaps the complaint, as amended, is inartful. Yet it specifically averred that a constructive trust existed under which Donna—the recipient of the insurance proceeds was the "constructive trustee . . . for the benefit" of the children. App. 26. The Supreme Judicial Court of Maine explicitly held that a constructive trust existed and that Donna was the constructive trustee of the corpus of this trust.4 In a technical sense, perhaps it can be argued there was "no allegation of fraud or breach of trust" as these precise terms were not used. But the complaint averred, id., at 24, 25, and the substance of this case is, that a constructive trust was created by Richard's agreement and conduct. 52 In my view, the Court is plainly wrong in concluding that Richard's conduct was "nothing more than a breach of contract" and that his obligation was like that of "any commercial" debtor who defaults on a judgment.5 Ante, at 59. Familial obligations are not merely commercial. Few legal duties are more universally acknowledged than the duty of a father to support his children. This duty existed in this case by law before the divorce. As a result of the divorce, it was recognized explicitly by Richard's contract with his family and by the divorce decree ordering him to discharge that duty by maintaining the insurance at issue for the benefit of his children. Yet, the Court today analogizes a father's support duty to that of a commercial debtor! This holding ignores the difference not only in character of the duties but also in their consequences. A defaulting debtor may be subjected to a judgment and an attachment lien. He may not be sent to jail. But a father who defaults on his duty to support his children or who violates a court decree enforcing that duty may be imprisoned for contempt. 53 The Court responds to this dissent in its footnotes 8 and 11. Yiatchos and Free are said to involve "a particular type of fraudulent behavior: attempts 'to divest the wife of any interest in her own property.' " Ante, at 59, n.8 (emphasis deleted). The Court distinguishes, for the purpose of determining the pre-emption issue, between fraud or breach of trust that affects a wife's interest in community property and fraud or breach of trust that affects minor children's interest in a fund set aside for their support. I see no basis for such a distinction. Yiatchos and Free recognize, without qualification, that "federal pre-emption [may not be allowed] to shield fraud or breach of trust." I would not have thought before today's decision that any court would suggest—much less find—that minor children are less entitled to be "shielded" from this type of conduct than an adult wife. Indeed, because of the difference between the capacity of an adult and that of young children, our law always has reflected a special solicitude for minors. See, e. g., Bellotti v. Baird, 443 U.S. 622, 633-635, 99 S.Ct. 3035, 3043-44, 61 L.Ed.2d 797 (1979). 54 The Court further argues that "by way of contrast" with a husband's "divest[ing]" his wife of her interest in community property, "Sergeant Ridgway [merely] misdirected property over which he had exclusive control." (Emphasis added.) Ante, at 59, n.8. This is indeed a generous way to describe the Sergeant's conduct. Moreover, the statement that he had "exclusive control" over the property begs the very question before us: whether Richard retained this control despite his conduct. He had divested himself voluntarily of all interest in the insurance policies by the agreement. The Maine court had approved the agreement, and ordered Richard to comply with it. He had far less "control" over the fund he had thereby created for his children's support than the husband had in either Yiatchos or Free. He had no interest whatever in the policies to "misdirect" to his new wife unless—contrary to those decisions—the Act is now read to allow fraud or breach of trust.6 55 I would hold that the special nature of the parental legal duty, as expressly manifested in this case by both Richard's negotiated bargain with his family and by the terms of his divorce decree, imposes a constructive trust upon the proceeds of the insurance for the benefit of Richard's children as a matter of federal law.7 As the Court acknowledges, ante, at 58, the intention of Congress to supplant state law does not extend to a breach of trust. Here the fund impressed with a trust should be held for its agreed purpose in accordance with the law of Maine.8 I would affirm the judgment of the Supreme Judicial Court of Maine. II 56 Although I think the breach-of-trust issue is dispositive, I would be willing—in the interest of preventing what seems to me a uniquely unjust decision—to join an opinion remanding the case to the Maine Supreme Judicial Court on the issue of fraud.9 There is no specific allegation of fraud, and yet the admitted facts create the strongest inference that Richard intended to evade his support obligation by diverting to his new wife the fund he had created for the benefit of his children. The temporal sequence itself is persuasive. Following several months of negotiation, the divorce was granted on December 7, 1977, but only on conditions that included the funding of the support obligation. On March 28, 1978, less than four months thereafter, Richard married Donna. Six days later he stripped his children of this fund by changing the beneficiary clause so that Donna would receive the proceeds. This hardly was an inadvertent act. It is unlikely that even the enchantment of a new wife caused him to forget both his duty and his obligation to his children. 57 It would be appropriate, however, to afford the state courts an opportunity to address the fraud issue. The Supreme Judicial Court of Maine ruled in April's favor without considering this alternative theory. This Court should not foreclose this consideration, for whether April will be permitted to advance this argument at this stage of the proceedings is a question of state procedural law. 58 Justice STEVENS, dissenting. 59 As a matter of state law, the Maine Supreme Judicial Court imposed a constructive trust on the proceeds of Sergeant Ridgway's life insurance. The trust effectuates a settlement agreement and an express judicial decree that commanded Ridgway to maintain the policy in effect for the benefit of his minor children.1 The propriety of the imposition of a constructive trust under Maine law is, of course, not a matter for us to review.2 Unless the application of this well-established equitable doctrine does "major damage" to "clear and substantial federal interests,"3 we must respect it. 60 Notwithstanding the absence of any such major damage, the Court today decides that the Maine court's decision conflicts with two provisions of the Servicemen's Group Life Insurance Act (SGLIA), 38 U.S.C. §§ 765-776.4 The Court finds a conflict with § 770(a) of the statute, which gives the serviceman the right to designate his beneficiary, and with § 770(g), which exempts the insurance proceeds from taxation and from seizure by legal or equitable process. Because the Court in Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424, relied on similar provisions of the National Service Life Insurance Act of 1940, 54 Stat. 1008, in rejecting a claim to insurance proceeds paid under that statute, the Court today concludes that Wissner is controlling and that it must reach a similar result. 61 Unquestionably, there is a strong federal interest in protecting federally supported benefits from claims of the recipient's commercial creditors.5 There is also a federal interest, much less clearly defined, in permitting a federal serviceman to designate the beneficiary of his insurance policy. Both of these federal interests supported the rejection of the estranged wife's claim in Wissner. A careful examination of this case, however, demonstrates that neither of these interests is compromised by the decision of the Maine Supreme Judicial Court. 62 * Since the alleged conflict with the exemption provision is more obvious in this case, and concerns a more substantial federal interest, I address it first. The statute provides: 63 "Payments of benefits due or to become due under Servicemen's Group Life Insurance or Veterans' Group Life Insurance made to, or on account of, a beneficiary shall be exempt from taxation, 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." 38 U.S.C. § 770(g). 64 This provision prohibits a commercial creditor from securing insurance proceeds in the hands of the beneficiary, regardless of any contrary agreement made by the insured or any terms of state law. Although the majority concludes that this provision also prohibits the state court from recognizing respondents' claim in this case, ante, at 60, it is most unlikely that Congress intended § 770(g) to operate as a bar to claims advanced by an insured's dependents for support. 65 The language used in the "anti-attachment" provision of the SGLIA is comparable to that found in so-called "spendthrift clauses" that have protected trust beneficiaries from the claims of commercial creditors for centuries.6 As stated by Dean Griswold, "[i]t is widely held, however, that even where such trusts are generally valid, the interest of the beneficiary may be reached for the support of his wife or children, or for the payment of alimony to his wife." E. Griswold, Spendthrift Trusts 389 (2d ed. 1947).7 Prior to the decision of this Court in Wissner, a number of courts had held that statutory "spendthrift" provisions did not bar a claim for alimony or support.8 Many of these cases in fact concerned exemption provisions applicable to veterans' benefits programs. As summarized in one treatise: 66 "And claims for the support and care of minor children of an incompetent veteran have been held not to be subject to the exemption, as the obligation of a father to support his minor children is not a debt within the meaning of the statute, but is an obligation growing out of the parental status and public policy." R. Kimbrough & J. Glen, American Law of Veterans 32 (2d ed. 1954).9 67 A thoughtful and expansive opinion of Justice Rutledge, then a member of the United States Court of Appeals for the District of Columbia, best explains the rationale of these decisions. In Schlaefer v. Schlaefer, 71 App.D.C. 350, 112 F.2d 177 (1940), the court considered a claim for arrears in alimony payments. Plaintiff sought sequestration of her former husband's property, including $100 per month that he received as disability benefit payments under the Life Insurance Act for the District of Columbia. Defendant responded that these payments were exempted specifically from process under the express language of § 16(a) of that federal statute.10 68 The court in Schlaefer stated that "[t]he basic issue boils down to whether Congress intended to relieve the disabled insured to the extent of his disability payments from legally enforceable obligation to support his family and those legally dependent upon him." Id., at 358, 112 F.2d, at 185. The court recognized: 69 "So far as general creditors are concerned the purpose is clear, with the exceptions stated, to make the disposition of these funds a matter solely for his judgment. Congress regarded it as better for the creditors to go unpaid than to deprive the debtor and his dependents of this means of support when earning capacity would be cut off. Hence it used broad language prohibiting recourse to the fund by legal process." Ibid. 70 The court determined, however, that the insured's legal dependents were not to be classified, for purposes of the statute, "with strangers holding claims hostile to his interest." Ibid. The court noted that "the usual purpose of exemptions is to relieve the person exempted from the pressure of claims hostile to his dependents' essential needs as well as his own personal ones, not to relieve him of familial obligations and destroy what may be the family's last and only security, short of public relief." Ibid. 71 The court concluded that this construction was "not inconsistent with giving full effect to the statute." Id., at 359, 112 F.2d, at 186. As explained by the court: 72 "The protection remaining is broad, applying both to 'debts' and to 'liabilities.' Furthermore, it renders the statute consistent with others which provide methods for enforcement of the husband's and the father's duty of support. Any other would nullify them in circumstances where the disability payments constitute the sole source of livelihood, though they might be adequate to support the insured and all his dependents in luxury. We cannot believe that Congress intended to create an exemption so broad and so inconsistent with the policy which it has declared in other acts." Ibid. (footnote omitted). 73 The court further noted that its construction of the exemption statute was consistent with other authorities, which had held that a claim for support was not a "debt" or a "liability" in the ordinary usages of those terms.11 74 In Wissner, the Court did not repudiate this distinction between family and business obligations. Rather, in ruling that the exemption statute was applicable in that case, the Court expressly recognized this distinction and placed the estranged wife's community property claim in the business category. As stated by the Court, "we must note that the community property principle rests upon something more than the moral obligation of supporting spouse and children: the business relationship of man and wife for their mutual monetary profit." 338 U.S., at 660, 70 S.Ct., at 400.12 As a result, it simply cannot be said that Wissner commands that an exemption statute such as that present in this case stands as a bar to claims based on familial obligations. 75 Although Wissner left open the question presented in this case, there is nothing in the language of the SGLIA or its legislative history that evidences an intent by Congress to repudiate this distinction between commercial and family obligations.13 The federal interest incorporated within exemption statutes is an interest in preventing federally supported benefits from satisfying claims of commercial creditors. Although such claims are certainly valid, they arise solely from a personal obligation of the debtor, and should not be borne by the public through payment from general revenues. Claims based on familial obligation, however, are of a different character, and indeed may be precisely the type of claim for which the federal benefit was intended.14 Absent some indication that Congress intended the standard exemption provision contained in the SGLIA to bar a minor child's claim for support, I am unwilling to conclude that this provision of the statute pre-empts the application of state law in this case. II 76 When the exemption provision is put to one side, the only support for the Court's pre-emption holding is the statutory provision giving the serviceman the right to designate the beneficiary of his insurance policy.15 In order to determine whether the decision of the Maine court has done "major damage" to the federal interests underlying this statutory provision, it is first appropriate to identify those federal interests precisely. 77 The right to designate the beneficiary of an insurance policy is a common feature in insurance contracts. It surely is not a right that can be characterized as uniquely federal in any sense. Moreover, the mere fact that the right has its source in a federal statute does not require that it be given a construction different from that given a comparable right created by state law or by private contract. As stated by this Court in Hisquierdo v. Hisquierdo, 439 U.S. 572, 583, 99 S.Ct. 802, 808, 59 L.Ed.2d 1, "[t]he federal nature of the benefits does not by itself proscribe the entire field of state control." 78 To be sure, the Court in Wissner speculated that "[p]ossession of government insurance, payable to the relative of his choice, might well directly enhance the morale of the serviceman." 338 U.S., at 660, 70 S.Ct., at 400. This interest in permitting a serviceman to designate the beneficiary of his insurance policy is not compromised in this case, however. It cannot be said that state law forces a distribution of the insurance proceeds that is inconsistent with the federal policy of permitting Sergeant Ridgway to choose his beneficiary. In a freely negotiated child custody and support settlement, Ridgway agreed to maintain his former wife as the beneficiary of the policy for the benefit of his minor children. Ridgway himself made that choice; the question presented in this case, therefore, is whether any provision of the statute espouses a federal interest in permitting him to change his beneficiary in derogation of an accepted obligation to provide support for his children. I can find no section of the statute that expresses such an interest. The result reached by the Court today surely cannot be justified by the need to maintain the "morale" of our Armed Forces. 79 The history of the statutory provision defining the serviceman's right to designate his beneficiary supports the conclusion that § 770(a) does not pre-empt state law in this case. Originally, servicemen could name as beneficiaries only those persons who fell within a limited, defined class.16 At the time Wissner was decided, servicemen could designate only a spouse, child, grandchild, parent, or sibling as a beneficiary of a National Service Life Insurance policy. The designation provision at issue in Wissner thus added support for the proposition that insurance proceeds were intended to benefit only immediate family members and dependents of the serviceman, and not any other party. 80 When Congress enacted the SGLIA in 1965, however, it removed all limitations on eligible beneficiaries. 79 Stat. 883. Any person may be named as beneficiary of the policy, including a commercial creditor. Today, the Court gives priority to the claim of any such designated beneficiary. Thus, as a result of its decision, a loan shark, a camp follower, or a total stranger designated as beneficiary would have priority over claims of dependent family members, even though those claims were incorporated in a voluntary settlement agreement and an express judicial decree. This result simply was not possible at the time Wissner was decided. No federal interest justifies such an absolute and unqualified priority for the designated beneficiary.17 81 It is ironic that today's decision may harm federal interests in a more tangible way than that ascribed to the decision of the Maine Supreme Judicial Court. As a result of the holding today, a commitment to keep military insurance in effect for one's children is not legally binding. In the future, a serviceman in divorce negotiations may be forced to purchase new insurance from a private insurer in order to provide fair assurance that his support obligation will remain satisfied in the event of his death. For many servicemen, such private insurance may not be easy to obtain. Surely there is no federal interest in depreciating the value of this insurance. 82 I respectfully dissent. 1 The Superior Court observed that the "agreement embodied in the divorce decree is valid," and it opined that the decree "would appear to give [April] a cause of action, on behalf of her children, against the estate of her former husband," App. 42, citing Stratton v. Servicemen's Group Life Ins. Co., 422 F.Supp. 1119 (SD Iowa 1976). See id., at 1122. 2 The very title of the Act recited that it was "to provide special indemnity insurance for members of the Armed Forces serving in combat zones, and for other purposes." 79 Stat. 880. 3 A similar and still earlier program of United States Government, or War Risk, Insurance, was in effect for the World War I period. War Risk Insurance Act of Oct. 6, 1917, § 400, 40 Stat. 409. See United States v. Williams, 302 U.S. 46, 58 S.Ct. 81, 82 L.Ed. 39 (1937). 4 See Pub.L. 91-291, §§ 1 and 2, 84 Stat. 326-327; Pub.L. 92-315, 86 Stat. 227; Pub.L. 93-289, 88 Stat. 165, 166, 169. 5 The Solicitor General states that 99.6% of all active duty personnel and 97.9% of the Ready Reservists are enrolled in the program. Brief for United States as Amicus Curiae 5. See also S.Rep.No.91-398, p. 2 (1969). 6 In its consideration of the purpose of the SGLIA, the Supreme Judicial Court of Maine, Ridgway v. Prudential Ins. Co. of America, 419 A.2d 1030, 1032-1033 (1980), relied upon a statement made in 1965 by the then Administrator of Veterans' Affairs. The statement is appended to H.R.Rep.No.1003, 89th Cong., 1st Sess., 15-17 (1965). In our view, however, the remarks cannot be used to read the choice-of-beneficiary provision out of the Act. In context, it is plain that the statement was not intended to serve as an exhaustive list of congressional purposes; it merely identified some of the problems in the existing law that were addressed by the pending legislation. 7 Justice STEVENS suggests that the "interest in permitting a serviceman to designate the beneficiary of his insurance policy [expressed in § 770(a)] is not compromised" by the Maine court's decision. Post, at 80. While that may or may not be true as a matter of policy, the statute expressly commands that SGLIA proceeds go to the beneficiary or beneficiaries designated by the service member. And the implementing regulations expressly command that a "change of beneficiary . . . will take effect only if it is in writing, signed by the insured and received [by the appropriate office] prior to the death of the insured," 38 CFR § 9.16(d) (1980); "[n]o change or cancellation of beneficiary . . . in a last will or testament, or in any other document shall have any force or effect unless such change is received by the appropriate office." § 9.16(f). Yet Justice STEVENS points to nothing in the language or history of the statute and regulations which suggests that Congress and the Administrator did not mean what they said. 8 Justice POWELL looks to Yiatchos v. Yiatchos, 376 U.S. 306, 84 S.Ct. 742, 11 L.Ed.2d 724 (1964), and Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962), in concluding that "the principle of not allowing federal pre-emption to shield fraud or breach of trust" is applicable here. Post, at 59, n.1. Those cases, however, were concerned with a particular type of fraudulent behavior: attempts "to divest the wife of any interest in her own property," In re Yiatchos' Estate, 60 Wash.2d 179, 181-182, 373 P.2d 125, 127 (1962) (emphasis added); see Yiatchos, 376 U.S., at 309, 84 S.Ct., at 745, which grew out of "fraud or a breach of trust tantamount thereto on the part of a husband while acting in his capacity as manager of the general community property." Free v. Bland, 369 U.S., at 670, 82 S.Ct., at 1094. In this case, by way of contrast, Sergeant Ridgway misdirected property over which he had exclusive control. In doing so, of course, he deprived the respondents of benefits to which they were entitled under state law. But that is precisely what transpired in Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424 (1950). Indeed, Free endorsed the Wissner holding, noting that "[t]here the Congress made clear its intent to allow a serviceman to select the beneficiary of his own government life insurance policy regardless of state law, even when it was likely that the husband intended to deprive his wife of a right to share in his life insurance proceeds, a right guaranteed by state law." 369 U.S., at 670, 82 S.Ct., at 1094. We are unable to distinguish the cases. 9 We need not presently address the legal aspects of extreme fact situations or of instances where the beneficiary has obtained the proceeds through fraudulent or illegal means as, for example, where the named beneficiary murders the insured service member. See Shoemaker v. Shoemaker, 263 F.2d 931 (CA6 1959). Our ruling on a situation of that kind is reserved for another day. 10 Burgess v. Murray, 194 F.2d 131 (CA5 1952), and Voelkel v. Tohulka, 236 Ind. 588, 141 N.E.2d 344, cert. denied, 355 U.S. 891, 78 S.Ct. 263, 2 L.Ed.2d 189 (1957), relied on by the respondents but not cited by the Maine court, are not helpful. To be sure, in each of those NSLIA cases, a constructive trust was imposed on the policy proceeds. This, however, was done to further the service member's dispositive intent. Here Sergeant Ridgway apparently intended to favor Donna as his surviving spouse. In any event, the regulations implementing the SGLIA's beneficiary designation requirements are stricter than the corresponding regulations promulgated under the NSLIA. Compare 38 CFR §§ 8.46 and 8.47 (1980) (NSLIA) with 38 CFR §§ 9.16(d) and 9.16(f) (1980) (SGLIA). 11 Justice POWELL suggests, without supporting citation, that the anti-attachment provision is inapplicable in this case because of "the special nature of the parental legal duty," noting that "[f]amilial obligations are not merely commercial." Post, at 70, 68. Again, Wissner answers this objection. There, the claimant was the decedent's widow, not a commercial creditor. Her action was grounded in the law of community property; the Court explicitly conceded that "[t]here are . . . support aspects to the community property principle, and in some cases they may be of considerable importance." 338 U.S., at 660, n.4, 70 S.Ct., at 400, n.4. The Court nevertheless struck down a state-court judgment in the widow's favor as being "in flat conflict" with the NSLIA's anti-attachment provision. Id., at 659, 70 S.Ct., at 399. We see no significant difference between the community property interest at issue in Wissner and the property settlement giving rise to the instant action. Justice STEVENS, meanwhile, argues that "it is most unlikely that Congress intended § 770(g) to operate as a bar to claims advanced by an insured's dependents for support," post, at 74; he reasons that "[p]rior to the decision of this Court in Wissner, a number of courts had held that statutory 'spendthrift' provisions did not bar a claim for alimony or support," ibid., at 65, and "there is nothing . . . that evidences an intent by Congress to repudiate this distinction between commercial and family obligations." Post, at 78. And he suggests that "[t]he federal interest incorporated within exemption statutes is an interest in preventing federally supported benefits from satisfying claims of commercial creditors." Post, at 78-79. While these are attractive arguments, neither of them survives close scrutiny. The more recent decisions, many involving facts almost identical to those before us, are virtually unanimous in concluding that the NSLIA anti-attachment provision overrides the contrary dictates of state family law. E. g., Hoffman v. United States, 391 F.2d 195 (CA9 1968) (anti-attachment provision overrides property settlement incorporated in divorce decree); Kimball v. United States, 304 F.2d 864 (CA6 1962) (same); Eldin v. United States, 157 F.Supp. 34 (SD Ill. 1957) (same); Williams v. Williams, 255 N.C. 315, 121 S.E.2d 536 (1961) (same); Fleming v. Smith, 69 Wash.2d 277, 284, 418 P.2d 147, 151 (1966) (same). Cf. United States v. Donall, 466 F.2d 1246 (CA6 1972); Taylor v. United States, 459 F.2d 1007 (CA9), cert. denied, 409 U.S. 967, 93 S.Ct. 273, 34 L.Ed.2d 232 (1972); Suydam v. United States, 131 U.S.App.D.C. 352, 404 F.2d 1329 (1968); Fitzstephens v. United States, 189 F.Supp. 919 (Wyo.1960); Heifner v. Soderstrom, 134 F.Supp. 174 (ND Iowa 1955). And it was against the background of these decisions that, in 1970, Congress enacted the SGLIA's anti-attachment provision—using language identical to that found in the NSLIA. Presumably, then, Congress did not intend to write into the statute the distinction made by Justice STEVENS. And our view, we believe, most closely accords with the purpose of anti-attachment provisions like the one before us: they "ensur[e] that the benefits actually reach the beneficiary." Hisquierdo v. Hisquierdo, 439 U.S. 572, 584, 99 S.Ct. 802, 809, 59 L.Ed.2d 1 (1979). 12 Respondents, in their brief and in oral argument, speak of the "unjust enrichment" of Donna Ridgway. The suggestion is not persuasive. The record discloses no wrong on Donna's part. She was, after all, the insured's lawful wife at the time of his death, and it is possible that depriving her of the proceeds would be as inequitable as any other result. We intimate no view as to whether wrongdoing by the named beneficiary would change the outcome. See n.9, supra. 1 The Court discerns a "fundamental distinction," ante, at 57, between this case and the application of the fraud exception to the saving bond program in Yiatchos. If there is a distinction, the principle of not allowing federal preemption to shield fraud or breach of trust is equally applicable. Hisquierdo v. Hisquierdo, 439 U.S. 572, 582, 99 S.Ct. 802, 808, 59 L.Ed.2d 1 (1979). As do the SGLIA provisions in this case, the savings bond regulations in Yiatchos bestowed upon the bond purchaser irrespective of the source of his purchasing funds—an apparently absolute and pre-emptive federal right to designate who would benefit from the federal program upon his death. See Free v. Bland, 369 U.S. 663, 669, 82 S.Ct. 1089, 1093, 8 L.Ed.2d 180 (1962). And as in this case, the party suffering from the exercise of this preemptive right claimed, as a matter of state law, to have a "shared" right to the asset in question. Indeed, in this case that state-law claim is stronger than in Yiatchos, since April and her children assert (under the state property settlement and divorce decree) an exclusive right to the entire SGLIA policy—not a "shared" right conferred by state community property law. 2 April's cross-claim against Donna alleges: "4. The terms of the divorce decree had been agreed upon in advance by plaintiff April D. Ridgway and Richard H. Ridgway for the benefit of themselves and their three minor children following months of negotiations regarding questions of support for the children, clothing allowances, assumption of responsibility for payment of existing bills, maintenance of existing life insurance and payment thereof, and attorney's fees. "5. The terms of the decree concerning the property settlement and continuing financial obligations of Richard H. and April D. Ridgway represented compromises from the original positions taken by the respective parties and were agreed to upon the understanding that the terms of the parties' agreement setting forth their mutual duties and obligations would be incorporated into the final divorce decree for their mutual benefit and the benefit of their three minor children. "6. Paragraph 5 of the final divorce judgment required Richard H. Ridgway to keep in force his existing life insurance and make it payable to his three children. "7. On or before April 3, 1978, in violation of the terms of the aforesaid agreement between the parties to the divorce judgment and of the divorce judgment itself, Richard H. Ridgway purported to change the beneficiary designation on his life insurance policy by writing the words 'at law' on a form provided for designating beneficiaries of servicemen's life insurance. * * * * * "9. As a result of the facts recited above, Donna Ridgway stands in the position of a constructive trustee of said insurance proceeds for the benefit of the three minor children of Richard H. and April D. Ridgway." App., 25-26. Donna admitted Paragraph 6, denied Paragraph 9, and claimed to be without sufficient information to form a belief as to the truth of Paragraphs 4, 5, and 7. She therefore denied these paragraphs. Id., at 34. The parties did stipulate to these facts: "Prior to their divorce, April Ridgway and Richard Ridgway carried on directly and through their attorneys, over a period of many months, negotiations regarding a property settlement including the disposition of Richard's existing life insurance. It was the intention of the parties that any agreement reached as a result of their negotiations would be incorporated into the divorce decree. In the course of the negotiations, a number of compromises were worked out between the parties regarding a division of the marital property and Richard's continuing obligation to support his children. The divorce decree dated December 7, 1977 did in fact incorporate the property settlement ultimately agreed to by the parties." Id., at 33. 3 It is clear from the emphasized language that the couple and the court were recognizing Richard's support obligation. 4 The Maine court stated: "Courts have commonly imposed a constructive trust on the proceeds of life insurance policies in the hands of a named beneficiary when the deceased has failed, contrary to the provisions of a property settlement agreement or a divorce decree, to name his divorced wife or his children by his divorced wife as the beneficiaries of the life insurance policies. . . . * * * * * ". . . We cannot see how imposing a constructive trust to enforce a valid judicial decree implementing the serviceman's voluntary agreement to name his minor children as the beneficiaries of his SGLI policy can in any way frustrate or impede the accomplishment of any legitimate federal objective. Nor do we find anything in the literal language of [SGLIA] or in its legislative history which would prohibit such action." Ridgway v. Prudential Ins. Co. of America, 419 A.2d 1030, 1031, 1034-1035 (1980). 5 The provisions of § 770(g) of the Act, so emphasized in the Court's opinion, are explicitly designed to protect servicemen from the "claims of creditors." They certainly were not designed to allow a serviceman to misappropriate (in effect) a fund from insurance proceeds lawfully set aside for his children. As the Supreme Judicial Court of Maine correctly observed: "[T]he statutory spendthrift provision found in Section 770(g) has no application to the instant case since its purpose is to protect the proceeds of the insurance from the claims of creditors. We are concerned here not with the claim of a creditor but with the claims of minor children who assert an equitable interest in the proceeds arising from their deceased father's voluntary agreement and a valid judicial decree." 419 A.2d, at 1033. 6 The Court finds Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424 (1950), to be controlling. In my view, its authority—though marginal—is supportive of the claim of the children in this case. Wissner involved a community property question arising when the serviceman assigned his insurance to his mother, thereby divesting his wife's property interest. The serviceman had made no independent commitment to his wife comparable to that by the father to his children in this case. Second, Wissner justified applying the federal anti-assignment provision to community property by referring to "the business relationship of man and wife for their mutual monetary profit." Id., at 660, 70 S.Ct., at 400 (emphasis added). This reasoning does not describe the parental duty. Wissner recognized this. It emphasized that "specific judicial recognition" of the "moral obligation" to "suppor[t] spouse and children" would have presented a different case. Ibid. Finally, both Yiatchos and Free were decided subsequent to Wissner and each of these explicitly left room for an exception from pre-emption where fraud or breach of trust existed. 7 See Yiatchos v. Yiatchos, 376 U.S. 306, 309, 84 S.Ct. 742, 744, 11 L.Ed.2d 724 (1964); Free v. Bland, 369 U.S., at 670-671, and n. 14, 82 S.Ct., at 1094 and n. 14. 8 See, e. g., Board of County Comm'rs v. United States, 308 U.S. 343, 349-350, 351-352, 60 S.Ct. 285, 287, 288-289, 84 L.Ed. 313 (1939). 9 "[W]hether or not there is fraud which will bar the named beneficiary in a particular case must be determined as a matter of federal law. . . ." Yiatchos v. Yiatchos, supra, at 309, 84 S.Ct., at 744. Cf. Mishkin, The Variousness of "Federal Law": Competence and Discretion in the Choice of National and State Rules for Decision, 105 U.Pa.L.Rev. 797, 816-820 (1957) (national rather than state definition of "competency" appropriate for the SGLIA's predecessor). 1 The imposition of a constructive trust on these facts is common in the law, and has been recognized in cases in which no wrongdoing could be imputed to the designated beneficiary. Simonds v. Simonds, 45 N.Y.2d 233, 380 N.E.2d 189, 408 N.Y.S.2d 359 (1978); McKissick v. McKissick, 93 Nev. 139, 560 P.2d 1366 (1977); Richards v. Richards, 58 Wis.2d 290, 206 N.W.2d 134 (1973); see also G. Bogert, Trusts and Trustees § 475 (rev. 2d ed. 1978). As stated in Simonds v. Simonds, supra, at 242, 380 N.E.2d, at 194, 408 N.Y.S.2d, at 364 (citations omitted): "Unjust enrichment, however, does not require the performance of any wrongful act by the one enriched. Innocent parties may frequently be unjustly enriched. What is required, generally, is that a party hold property 'under such circumstances that in equity and good conscience he ought not to retain it.' A bona fide purchaser of property upon which a constructive trust would otherwise be imposed takes free of the constructive trust, but a gratuitous donee, however innocent, does not." 2 "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, 852-853, 34 L.Ed. 500. 3 "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, 506, 15 L.Ed.2d 404 (1966)." Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 807, 59 L.Ed.2d 1. 4 The SGLIA was enacted in 1965. 79 Stat. 880. Relevant amendments were made in 1970. 84 Stat. 326. 5 Federal benefit programs often provide that benefits are exempt from legal process. See, e. g., 5 U.S.C. § 8346(a) (Civil Service Retirement benefits); 28 U.S.C. § 376(n) (annuities for survivors of judicial officials); 42 U.S.C. § 3796(f) (1976 ed., Supp.III) (Public Safety Officers' Death benefits); 45 U.S.C. § 231m (Railroad Retirement benefits). It is interesting to note, however, that 42 U.S.C. § 659(a) (1976 ed., Supp.III) provides that "[n]otwithstanding 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 or the District of Columbia (including any agency, subdivision, or instrumentality thereof) 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 or the District of Columbia 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." This statute removes the sovereign immunity of the Government in an action brought to enforce a support obligation, and would appear to express a clear federal interest in the enforcement of such obligations. 6 See generally E. Griswold, Spendthrift Trusts (2d ed. 1947); Bogert, supra n.1, §§ 221-230; 2 A. Scott, Law of Trusts §§ 149-162 (3d ed. 1967). 7 The Restatement (Second) of Trusts § 157(a) (1957) also provides: "Although a trust is a spendthrift trust or a trust for support, the interest of the beneficiary can be reached in satisfaction of an enforceable claim against the beneficiary, "(a) by the wife or child of the beneficiary for support, or by the wife for alimony. . . ." See also Bogert, supra n.1, § 224; 2 Scott, supra n.6, § 157.1, and cases cited. 8 See Schlaefer v. Schlaefer, 71 App.D.C. 350, 112 F.2d 177 (1940); In re Flanagan, 31 F.Supp. 402 (DC 1940); Hannah v. Hannah, 191 Ga. 134, 11 S.E.2d 779 (1941); Gaskins v. Security-First National Bank, 30 Cal.App.2d 409, 86 P.2d 681 (1939); In re Gardner, 220 Wis. 493, 264 N.W. 643 (1936); Stirgus v. Stirgus, 172 Miss. 337, 160 So. 285 (1935); Stone v. Stone, 188 Ark. 622, 67 S.W.2d 189 (1934); Hollis v. Bryan, 166 Miss. 874, 143 So. 687 (1932). See also R. Kimbrough & J. Glen, American Law of Veterans 28-33 (2d ed. 1954); Dillard v. Dillard, 341 S.W.2d 668 (Tex.Civ.App.1960). But see Conaway v. Conaway, 218 Cal.App.2d 427, 32 Cal.Rptr. 890 (1963); Riker v. Riker, 160 Misc. 117, 289 N.Y.S. 835 (1936); Brewer v. Brewer, 19 Tenn.App. 209, 84 S.W.2d 1022 (1933). 9 See also Rogers, Enforcement of Claim for Alimony or Support, or for Attorneys' Fees and Costs Incurred in Connection Therewith, Against Exemptions, 54 A.L.R.2d 1422 (1957); Annot., Construction and Application of Provisions of Federal Statutes in Relation to Exemption from Claims of Creditors of Amounts Paid as Pensions, War Risk Insurance, Compensation, Bonus, or Other Relief for Veterans, 109 A.L.R. 433 (1937). 10 The exemption statute provided: "No money or other benefit paid, provided, allowed, or agreed to be paid by any company on account of the disability from injury or sickness of any insured person shall be liable to execution, attachment, garnishment, or other process, or to be seized, taken, appropriated or applied by any legal or equitable process or operation of law, to pay any debt or liability of such insured person whether such debt or liability was incurred before or after the commencement of such disability, but the provisions of this section shall not affect the assignability of any such disability benefit otherwise assignable, nor shall this section apply to any money income disability benefit in an action to recover for necessaries contracted for after the commencement of the disability covered by the disability clause or contract allowing such money income benefit." Life Insurance Act for the District of Columbia, § 16(a), 48 Stat. 1175. 11 The force of Justice Rutledge's opinion has not diminished over time. In Cody v. Riecker, 454 F.Supp. 22 (EDNY 1978), aff'd 594 F.2d 314 (CA2 1979), the court relied extensively on Justice Rutledge's analysis in concluding that the exemption provision contained in the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., did not bar a divorced wife's attachment of pension benefits to satisfy arrears in an obligation to provide support. 12 The care with which Justice Clark preserved the basic distinction presents a sharp contrast to the Court's blithe reliance on Wissner as controlling today. It is worth quoting in full the Court's treatment of the issue: "We recognize that some courts have ruled that this and similar exemptions relating to pensions and veterans' relief do not apply when alimony or the support of wife or children is in issue. See Schlaefer v. Schlaefer, 71 App.D.C. 350, 112 F.2d 177 (1940); Tully v. Tully, 159 Mass. 91, 34 N.E. 79 (1893); Hodson v. New York City Employees' Retirement System, 243 App.Div. 480, 278 N.Y.S. 16 (1935); In re Guardianship of Bagnall, 238 Iowa 905, 29 N.W.2d 597 (1947), and cases therein cited. But cf. Brewer v. Brewer, 19 Tenn.App. 209, 239-241, 84 S.W.2d 1022, 1040 (1933). We shall not attempt to epitomize a legal system at least as ancient as the customs of the Visigoths, but we must note that the community property principle rests upon something more than the moral obligation of supporting spouse and children: the business relationship of man and wife for their mutual monetary profit. See de Funiak, Community Property, § 11 (1943). 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. Our view of those cases, whatever it may be, is irrelevant here.4 "4 There are, of course, support aspects to the community property principle, and in some cases they may be of considerable importance. Likewise alimony may not be limited to the amount essential to support the divorced spouse. But we do not think the Congress would have intended decision to turn on factual variations in the spouse's need. If there is a distinction to be drawn, we think it must be based upon a generalization as to the dominating characteristics of a particular class of cases—alimony cases, support cases, community property cases. The alimony cases have uniformly been decided on that basis." 338 U.S., at 659-660, and n.4, 70 S.Ct., at 399-400, and n.4. 13 Sergeant Ridgway's second wife of course has no obligation to support Ridgway's children of a prior marriage. The state-court judgment in this case affects only the disposition of Sergeant Ridgway's life insurance, however, "over which he had exclusive control." Ante, at 59, n. 8. 14 It is noteworthy that this Court has decided that "[w]ar risk insurance was made available to those in active military service for the greater protection of themselves and their dependents." United States v. Williams, 302 U.S. 46, 50, 58 S.Ct. 81, 83, 82 L.Ed.2d 39. See also n. 16, infra. 15 The statutory provision relied on by the Court simply provides: "(a) Any amount of insurance under this subchapter in force on any member or former member on the date of his death shall be paid, upon the establishment of a valid claim therefor, to the person or persons surviving at the date of his death, in the following order of preference: "First, to the beneficiary or beneficiaries as the member or former member may have designated by a writing. . . ." 38 U.S.C. § 770(a). 16 In the War Risk Insurance Act of 1917, § 402, 40 Stat. 409, insurance proceeds were payable only to a spouse, child, grandchild, parent, brother, or sister. In 1919 the Act was amended and the permitted class of beneficiaries was enlarged to include uncles, aunts, nephews, nieces, brothers-in-law and sisters-in-law. 41 Stat. 371, 375. This class of eligible beneficiaries was retained in the World War Veterans Act of 1924, 43 Stat. 607, 624. In the National Service Life Insurance Act of 1940, § 601(g), 54 Stat. 1010, Congress provided that "[t]he insurance shall be payable only to a widow, widower, child (including a stepchild or an illegitimate child if designated as a beneficiary by the insured), parent (including person in loco parentis if designated as beneficiary by the insured), brother or sister of the insured." 17 It is of interest that, in an early case involving a dispute between a serviceman's mother, who had been designated as the sole beneficiary of an insurance policy under the War Risk Insurance Act of 1917, 40 Stat. 398, 409, and a serviceman's aunt, who had an equitable claim to one-half of the policy proceeds, this Court ordered an equitable distribution. White v. United States, 270 U.S. 175, 46 S.Ct. 274, 70 L.Ed. 530. A federal rule that the designated beneficiary should always prevail against equitable claims would have required a contrary result.

910

454 U.S. 83 102 S.Ct. 69 70 L.Ed.2d 65 William LEEKE, etc., et al.v.Melvin Lee TIMMERMAN et al. No. 80-2077. Nov. 16, 1981. Rehearing Denied Jan. 11, 1982. See 454 U.S. 1165, 102 S.Ct. 1041. PER CURIAM. 1 Petitioners, state correctional officials, seek review of a decision of the United States Court of Appeals for the Fourth Circuit finding petitioners in violation of 42 U.S.C. § 1983 for opposing respondents' application for an arrest warrant. We grant the motion of respondents for leave to proceed in forma pauperis and the petition for writ of certiorari and reverse on the basis of our decision in Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973). 2 * Respondents were prison inmates in the Central Correctional Institution in Columbia, S.C., at the time of a prison uprising in August 1973. Respondents contend that during the uprising they were unnecessarily beaten by prison guards. Respondent Timmerman sought criminal arrest warrants against four prison guards. In support of his action, Timmerman presented sworn statements to a Magistrate along with alleged "confidential information" from an employee at the prison who purportedly investigated the incident and concluded that respondents were victimized by the prison guards. Although a subsequent hearing in the Federal District Court indicated that the information provided by Timmerman was "suspect at best," it provided sufficient evidence to convince the state-court Magistrate that probable cause existed for issuance of arrest warrants against the prison guards. The Magistrate informed the legal adviser to the South Carolina Department of Corrections of his intent to issue the warrants and the legal adviser relayed this information to the prison Warden. 3 In an effort to have the criminal action against the correctional officers dropped, the legal adviser and Warden met with the County Sheriff, Deputy Attorney, and State Solicitor. At the meeting, the State Solicitor reviewed the facts and stated that there would be no indictment against three of the accused guards, but that he was unsure whether an indictment would be sought against the fourth guard. As a result of the meeting, the State Solicitor wrote a letter to the Magistrate requesting that the warrants not be issued. The Solicitor also stated that he intended to ask the State Law Enforcement Division to conduct an investigation concerning the charges made against the officers involved; the Magistrate did not issue the warrants and no state investigation was initiated. 4 Respondents subsequently filed suit in the United States District Court for the District of South Carolina contending, among other claims, that petitioners conspired in bad faith to block the issuance of the arrest warrants for the prosecution of the prison guards. The District Court concluded that petitioners denied respondents their right to "a meaningful ability to set in motion the governmental machinery because [petitioners' activities] stopped the machinery unlawfully, not in a proper way, as for example, upon a valid determination of lack of probable cause."1 Although the State Solicitor and the Magistrate were found to be immune from damages, the District Court concluded that the legal adviser to the prisons and the Director of the Department of Corrections were liable for their actions in requesting the State Solicitor to discourage issuance of the warrants. Respondents were awarded $3,000 in compensatory damages, $1,000 in punitive damages, and attorney's fees against the two petitioners. 5 The United States Court of Appeals for the Fourth Circuit affirmed and acknowledged that under Linda R.S. v. Richard D., supra, at 619, 93 S.Ct., at 1149, "a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." The Court of Appeals concluded, however, that Linda R.S. did not foreclose respondents' right to seek an arrest warrant. II 6 In Linda R.S. the mother of an illegitimate child brought an action in United States District Court to enjoin "discriminatory application" of a Texas Penal Code provision that imposed criminal sanctions on a parent who willfully deserted, neglected, or refused to provide child support. The Texas courts had held that the statute applied only to the parents of legitimate children and did not apply to the parents of illegitimate children. We held that the appellant in Linda R.S. did not have standing to challenge the statute because she had failed to allege a sufficient nexus between her injury and the government's failure to prosecute fathers of illegitimate children. Even if the appellant in Linda R.S. were granted the requested relief, the Court concluded that the remedy sought by the appellant would not guarantee payment of child support. The remedy sought would only increase the probability of prosecution of the father for the failure to provide support, and "a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Ibid. 7 Our holding in Linda R.S. controls disposition here. The threshold inquiry is whether respondents have standing to challenge the actions of petitioners. As in Linda R.S., there is a questionable nexus between respondents' injury—the alleged beatings—and the actions of the state officials in which they gave information to a Magistrate prior to issuance of an arrest warrant. Even without the prosecutor's acts, there is no guarantee that issuance of the arrest warrant would remedy claimed past misconduct of guards or prevent future misconduct. Even if a prosecution could remedy respondents' injury, the issuance of an arrest warrant in this case is simply a prelude to actual prosecution. Respondents concede that the decision to prosecute is solely within the discretion of the prosecutor. It is equally clear that issuance of the arrest warrant in this case would not necessarily lead to a subsequent prosecution. 8 A private citizen therefore has no judicially cognizable right to prevent state officials from presenting information, through intervention of the state solicitor, that will assist the magistrate in determining whether to issue the arrest warrant. Just as respondents were able to present arguments as to why an arrest warrant should issue, a state solicitor must be able to present arguments as to why an arrest warrant should not issue. This is not a case in which prison officials interfered with the transmittal of information from respondents to the magistrate, thereby interfering with respondents' ability under South Carolina law to seek the arrest of another. S.C.Code § 22-3-710 (1976).2 9 In this case respondents had access to judicial procedures to redress any claimed wrongs. Respondents, in other words, were able to "set in motion the governmental machinery," Lane v. Correll, 434 F.2d 598, 600 (CA5 1970), and bring their complaints to the attention of the Magistrate. The actions of the state officials, by which they influenced the decision of the State Solicitor to oppose issuance of the arrest warrants, thus did not violate any judicially cognizable rights of respondents.3 The judgment of the Court of Appeals is 10 Reversed. Justice BRENNAN, with whom Justice MARSHALL and Justice BLACKMUN join, dissenting. 11 In my view, the Court, by mischaracterizing respondents' alleged injury, improperly invokes Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973), to deny respondents standing in this civil action brought pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985(3) (1976 ed., Supp.IV). 12 Linda R.S. involved a challenge to Texas' enforcement of Art. 602 of the Texas Penal Code, brought by the mother of an illegitimate child. Article 602 provided in part that "any parent who shall wilfully desert, neglect or refuse to provide for the support and maintenance of his or her child or children under eighteen years of age, shall be guilty of a misdemeanor, and upon conviction, shall be punished by confinement in the County Jail for not more than two years." The State construed Art. 602 to apply only to parents of legitimate children, and had accordingly declined to prosecute the father of the appellant's child despite his refusal to provide support for the child. The appellant sought to enjoin the State's "discriminatory application" of the statute. Holding that the appellant lacked standing to raise this challenge to the construction of the State's criminal statute, this Court affirmed the dismissal of the action. The Court reasoned that while the "appellant no doubt suffered an injury stemming from the failure of her child's father to contribute support payments," there was no " 'direct' relationship" between the State's failure to prosecute the father and the injury sustained. Linda R.S., supra, at 618, 93 S.Ct., at 1149. Rather, the Court declared, "[t]he prospect that prosecution will, at least in the future, result in payment of support can, at best, be termed only speculative." 410 U.S., at 618, 93 S.Ct., at 1149. 13 The Court seeks to bring the present case within the holding of Linda R.S. by suggesting that "[a]s in Linda R.S., there is a questionable nexus between respondent's injury—the alleged beatings—and the actions of the state officials in which they gave information to a Magistrate prior to issuance of an arrest warrant. . . . It is . . . clear that issuance of the arrest warrant in this case would not necessarily lead to a subsequent prosecution." Ante, at 86-87. The Court's analysis simply cannot withstand scrutiny. Contrary to the Court's suggestion, the respondents' alleged injury—for the purposes of their civil action brought pursuant to §§ 1983 and 1985(3)—is not the "beatings," but rather the deprivation of their constitutional right of access to the courts, assured by the First and Fourteenth Amendments. They have alleged that petitioners' conspiratorial acts deprived them of their right to seek an arrest warrant, and thus denied them their constitutional right of access to the courts. Plainly there is a substantial nexus between the alleged injury and petitioners' acts, thus making Linda R.S. wholly inapposite. If there is a basis for denying respondents standing to bring their civil action, it is not to be found in Linda R.S. 14 Under the circumstances, plenary review is merited. Accordingly, I dissent. 1 The case had previously been appealed to the United States Court of Appeals for the Fourth Circuit, at which time the Court of Appeals determined that the State Magistrate and State Solicitor were not insulated from declaratory and injunctive relief by judicial immunity and that the action was not barred by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Timmerman v. Brown, 528 F.2d 811 (1975). 2 As early as 1870 the South Carolina Supreme Court indicated that under South Carolina law, "[s]ave for the just and proper vindication of the law, no one has an interest in the conviction of [another]." State v. Addison, 2 S.C. 356, 364. 3 This conclusion comports with the smooth functioning of the criminal justice system. The American Bar Association Standards for Criminal Justice, The Prosecution Function 3-3.4 (2d ed. 1980), propose that where the law permits a private citizen to complain directly to a judicial officer, the complainant "should be required to present the complaint for prior approval to the prosecutor, and the prosecutor's actions or recommendation thereon should be communicated to the judicial officer or grand jury." Many jurisdictions contain provisions for private citizens to initiate the criminal process, and some have required or encouraged input of the prosecuting attorney before issuance of an arrest warrant. See, e. g., Neb.Rev.Stat. § 29-404 (1979); Ohio Rev.Code Ann. § 2935.10 (1975); S.D.Comp. Laws Ann. § 23A-2-2 (1979); Wis.Stat. § 968.02(3) (1977).

89

454 U.S. 90 102 S.Ct. 172 70 L.Ed.2d 262 CALIFORNIA ex rel. Edward COOPER, City Attorney of Santa Ana, Californiav.MITCHELL BROTHERS' SANTA ANA THEATER, etc., et al. No. 81-271. Nov. 30, 1981. Rehearing Denied April 5, 1982. See 456 U.S. 920, 102 S.Ct. 1779. PER CURIAM. 1 The petition for certiorari is granted limited to Question 2 presented in the petition, namely, whether a city, in a public nuisance abatement action brought against a motion picture theater, must prove beyond a reasonable doubt that the motion pictures at issue are obscene.1 2 The Santa Ana City Attorney brought this action against respondents to abate a public nuisance pursuant to Cal.Civ.Proc.Code Ann. § 731 (West 1980).2 The complaint alleged that numerous films shown by the respondents were obscene and thus constituted a public nuisance as defined by Cal.Civ.Code Ann. §§ 3479, 3480 (West 1970).3 The complaint sought, inter alia, court approval of a resolution passed by the Santa Ana City Council revoking all of respondents' operating licenses and permits, a permanent injunction forbidding respondents to show the films named in the complaint, and a 1-year closure of respondents' theater. 3 The trial court determined that the complaint presented both equitable and legal issues and ordered that a jury trial be held on the issues of obscenity, public nuisance, and damages prior to resolution of the equitable issues by the court. The jury trial was divided into liability and damages stages. After the evidence pertaining to obscenity and public nuisance had been presented, the jury was instructed that they could find the films at issue to be obscene only if they were persuaded of such "beyond a reasonable doubt." The jury found 11 films obscene, 4 not obscene, and was unable to reach a verdict on 2 others. 4 Following a jury determination of damages, the court issued findings of fact and conclusions of law with respect to the equitable issues. The court found, independently from the jury verdict and based upon its own viewing, that the same 11 films were obscene beyond a reasonable doubt as the term obscene is defined in Cal.Penal Code Ann. § 311(a) (West 1970).4 There were cross-appeals, the city asserting, among other things, that the trial court erred in imposing the beyond-reasonable-doubt burden of proof. The California Court of Appeal affirmed on this issue. Relying on this Court's observation that "the regulation of a communicative activity such as the exhibition of motion pictures must adhere to more narrowly drawn procedures than is necessary for the abatement of an ordinary nuisance," Vance v. Universal Amusement Co., 445 U.S. 308, 315, 100 S.Ct. 1156, 1160, 63 L.Ed.2d 413 (1980) (per curiam), and Justice BRENNAN's statement that "the hazards to First Amendment freedoms inhering in the regulation of obscenity require that even in . . . a civil proceeding, the State comply with the more exacting standard of proof beyond a reasonable doubt," McKinney v. Alabama, 424 U.S. 669, 683-684, 96 S.Ct. 1189, 1197-98, 47 L.Ed.2d 387 (1976) (concurring opinion), the court concluded that "one of the required procedures is that obscenity be proved beyond a reasonable doubt."5 People ex rel. Gow v. Mitchell Bros.' Santa Ana Theater, 114 Cal.App.3d 923, 936, 171 Cal.Rptr. 85, 93 (1981). We reverse. 5 The purpose of a standard of proof is "to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication." In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 1076, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). Three standards of proof are generally recognized, ranging from the "preponderance of the evidence" standard employed in most civil cases, to the "clear and convincing"6 standard reserved to protect particularly important interests in a limited number of civil cases, to the requirement that guilt be proved "beyond a reasonable doubt" in a criminal prosecution. See Addington v. Texas, 441 U.S. 418, 423-424, 99 S.Ct. 1804, 1807-08, 60 L.Ed.2d 323 (1979). This Court has, on several occasions, held that the "clear and convincing" standard or one of its variants is the appropriate standard of proof in a particular civil case. See Addington v. Texas, supra, at 431, 99 S.Ct. at 1812 (civil commitment); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 52, 91 S.Ct. 1811, 1824, 29 L.Ed.2d 296 (1971) (libel); Woodby v. INS, 385 U.S. 276, 285, 87 S.Ct. 483, 487-88, 17 L.Ed.2d 362 (1966) (deportation); Chaunt v. United States, 364 U.S. 350, 353, 81 S.Ct. 147, 149, 5 L.Ed.2d 120 (1960) (denaturalization); Schneiderman v. United States, 320 U.S. 118, 159, 63 S.Ct. 1333, 1353, 87 L.Ed. 1796 (1943) (denaturalization). However, the Court has never required the "beyond a reasonable doubt" standard to be applied in a civil case. "This unique standard of proof, not prescribed or defined in the Constitution, is regarded as a critical part of the 'moral force of the criminal law,' In re Winship, 397 U.S., at 364, 90 S.Ct., at 1072, and we should hesitate to apply it too broadly or casually in noncriminal cases." Addington v. Texas, supra, 441 U.S., at 428, 99 S.Ct., at 1810. 6 Thus while a State may require proof beyond reasonable doubt in an obscenity case, that choice is solely a matter of state law. The First and Fourteenth Amendments do not require such a standard. The judgment of the Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. 7 So ordered. 8 Justice BRENNAN, with whom Justice MARSHALL joins, dissenting. 9 Although I adhere to my view that a State may not constitutionally suppress sexually oriented films except perhaps as necessary to shield juveniles or unconsenting adults, see, e. g., Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 93 S.Ct. 2628, 2642, 37 L.Ed.2d 446 (1973) (BRENNAN, J., dissenting), since the State alone has petitioned for review in this case, I concur in limiting the grant of certiorari to consideration of whether the State must demonstrate beyond a reasonable doubt that communication it seeks to suppress is obscene. I share, however, Justice STEVENS' concern, post, at 97, that we lack the requisite assurance of our jurisdiction to consider this question and join his suggestion that we adhere to our ordinary practice of denying the writ or of remanding to the state court for a determination of whether the decision below rests on a federal or a state ground. California v. Krivda, 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45 (1972). 10 Alternatively, assuming we have jurisdiction in this case, I dissent from the Court's holding that the First Amendment does not require the State when it seeks to suppress otherwise constitutionally protected material to prove that material obscene beyond a reasonable doubt. My reasons are stated in my concurring opinion in McKinney v. Alabama, 424 U.S. 669, 683-687, 96 S.Ct. 1189, 1197-99, 47 L.Ed.2d 387 (1976). 11 Justice STEVENS, dissenting. 12 Without the benefit of full briefs and arguments I would not answer the question whether the First Amendment requires that obscenity be proved beyond a reasonable doubt in a public nuisance abatement action.1 Justice BRENNAN's opinion in McKinney v. Alabama, 424 U.S. 669, 683-687, 96 S.Ct. 1189, 1197-99, 47 L.Ed.2d 387, in which Justice Stewart and Justice MARSHALL joined, demonstrates the substantiality of the question. It is distressing to find that the Court considers novel questions of this character so easy as not even to merit argument.2 It is also surprising to find the Court reaching out to decide such a question when its jurisdiction to do so is doubtful and when the absence of conflict on the question normally would call for a routine denial of certiorari. 13 * In this public nuisance abatement action the California Superior Court and the California Court of Appeal concluded that obscenity must be proved beyond a reasonable doubt. See People ex rel. Gow v. Mitchell Brothers' Santa Ana Theater, 114 Cal.App.3d 923, 935-937, 171 Cal.Rptr. 85, 92-93 (1981). Without deciding whether the First Amendment imposes any special standard of proof on the censorship of allegedly obscene materials, the Court today opines that proof beyond a reasonable doubt is not constitutionally required. The Court has no jurisdiction to express that opinion unless the California courts imposed that standard because they understood it to be required by federal law. It is by no means clear that they did so. 14 State courts surely know the difference between opinions that merely contain persuasive reasoning and opinions that are authoritative because they explain a ruling that is binding on lower courts. Moreover, absent a definitive ruling from a higher tribunal, state courts are entitled to fashion state rules of procedure to govern the conduct of civil trials in state courts. Until today, this Court has never expressed an opinion on the standard of proof that a trial court should impose on a civil litigant seeking to prove that a motion picture film is obscene. 15 The explanation by the California Court of Appeal of its ruling on the standard-of-proof issue does not indicate that the court considered itself bound to follow any decision by this Court. As the Court of Appeal explained, the trial judge "established the high burden of proof based on the reasoning of Mr. Justice Brennan's concurring opinion in McKinney v. Alabama, supra, 424 U.S. 669, 678 [96 S.Ct. 1189, 1195, 47 L.Ed.2d 387]." Id., at 935, 171 Cal.Rptr., at 92. After citing People v. Frangadakis, 184 Cal.App.2d 540, 550, 7 Cal.Rptr. 776, 782 (1960),3 and rejecting the City Attorney's argument that the standard of proof required in normal public nuisance abatement actions should be applied in an obscenity case, the California Court of Appeal stated that it "agree[d]" with the burden of proof portion of Justice BRENNAN's opinion and found one passage "particularly persuasive." 114 Cal.App.3d, at 936, 171 Cal.Rptr., at 93.4 16 The state court's opinion may be construed in either of two ways. On the one hand, because the Court of Appeal agreed with the reasoning in Justice BRENNAN's opinion, it may merely have established the procedural rule to be followed in the state courts subject to its jurisdiction.5 On the other hand, it may have assumed that a lesser burden would have complied with state law but nevertheless ruled as it did because it believed the Federal Constitution required that result. When this sort of ambiguity is present, our jurisdiction is doubtful and we have a duty to withhold decision on the merits until we are able "to say with requisite assurance that this Court has jurisdiction in the premises." Mental Hygiene Dept. of Cal. v. Kirchner, 380 U.S. 194, 196, 85 S.Ct. 871, 873, 13 L.Ed.2d 753. As Justice Harlan emphasized in that case: 17 "This Court is always wary of assuming jurisdiction of a case from a state court unless it is plain that a federal question is necessarily presented, and the party seeking review here must show that we have jurisdiction of the case. Were we to assume that the federal question was the basis for the decision below, it is clear that the California Supreme Court, either on remand or in another case presenting the same issues, could inform us that its opinion was in fact based, at least in part, on the California Constitution, thus leaving the result untouched by whatever conclusions this Court might have reached on the merits of the federal question." Id., at 197, 85 S.Ct., at 873 (footnote omitted). 18 Later in the opinion, Justice Harlan emphasized that we must be able to say with "certainty that the California judgment rested solely on [a federal ground]," id., at 200, 85 S.Ct., at 875 (emphasis in original), before we may take jurisdiction of a case coming from a state court. 19 Unless a case presents a question of unusual importance, jurisdictional doubt of this character normally leads to the dismissal of the writ of certiorari as improvidently granted, or to its denial if the petition is still pending. Id., at 200-201, 85 S.Ct., at 875. If the issue is sufficiently important, our practice is to remand to the state court to make sure that its decision rested solely on a state ground before we proceed further. See, e. g., California v. Krivda, 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45. Whether one regards this as an important or an unimportant case, surely we should not simply ignore the customary restraints on the exercise of our limited jurisdiction over state courts. II 20 Entirely apart from the jurisdictional question, adherence to the Court's traditional practice of avoiding the unnecessary and premature adjudication of constitutional questions counsels denial of this certiorari petition. As a practical matter, what is at stake is the City Attorney's request for a retrial of the question whether 17 rather than just 11 motion picture films are obscene. No conflict between the ruling of the California Court of Appeal and that of any other court has been called to our attention. Even if one intermediate appellate court has given greater constitutional protection to some citizens of California than this Court would require, that is hardly a sufficient reason for reviewing the state court's decision.6 No pressing need for the exercise of our jurisdiction at this time is apparent to me. 21 Accordingly, I respectfully dissent from the decision to grant certiorari and to decide the case summarily. 1 The petition is otherwise denied. 2 Section 731 provides in pertinent part: "An action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance, as the same is defined in section thirty-four hundred and seventy-nine of the Civil Code, and by the judgment in such action the nuisance may be enjoined or abated as well as damages recovered therefor. A civil action may be brought in the name of the people of the State of California to abate a public nuisance, as the same is defined in section thirty-four hundred and eighty of the Civil Code, . . . by the city attorney of any town or city in which such nuisance exists. . . ." 3 Sections 3479 and 3480 provide in pertinent part: "§ 3479. . . . Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, . . . is a nuisance." "§ 3480. . . . A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal." See also People ex rel. Busch v. Projection Room Theater, 17 Cal.3d 42, 49, 130 Cal.Rptr. 328, 550 P.2d 600, 603-604 (exhibition of obscene films may be characterized as "indecent" or "offensive to the senses"), cert. denied sub nom. Van de Kamp v. Projection Room Theater, 429 U.S. 922, 97 S.Ct. 320, 50 L.Ed.2d 289 (1976). 4 Section 311(a) reads: " 'Obscene matter' means matter, taken as a whole, the predominant appeal of which is to the average person, applying contemporary standards, is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance." 5 The court's conclusion rested solely on federal grounds; no state authority was cited for the proposition that obscenity must be proved beyond a reasonable doubt. 6 The precise verbal formulation of this standard varies, and phrases such as "clear and convincing," "clear, cogent, and convincing," and "clear, unequivocal, and convincing" have all been used to require a plaintiff to prove his case to a higher probability than is required by the preponderance-of-the-evidence standard. C. McCormick, Evidence § 320, p. 679 (1954). See also Kaplan, Decision Theory and the Factfinding Process, 20 Stan.L.Rev. 1065, 1072 (1968). 1 Cf. Snepp v. United States, 444 U.S. 507, 516, 100 S.Ct. 763, 769, 62 L.Ed.2d 704 (STEVENS, J., dissenting). 2 When the State prohibits its citizens from purchasing books they want to read or entering theaters to view motion pictures they want to see, it engages in a form of censorship. The task of the censor cannot be performed without examining the content of the communication under scrutiny. Although a majority of the Court has stoutly and repeatedly denied that government has any power to draw distinctions based on the content of any expression, see the separate opinions in FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073, and in Young v. American Mini Theaters, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310, today the Court holds that the California courts were unnecessarily concerned that the censor's content-based scrutiny might result in the prohibition of protected communication. The holding seems to rest on an assumption that, no matter what the consequences of a civil lawsuit may be, the Constitution does not require the plaintiff to satisfy the reasonable-doubt standard of proof. If the Court is endorsing that broad assumption today, then this decision is far more important than even the substantial question presented for review would indicate. If the Court does not intend to endorse such a broad premise, its opinion should respond to the arguments advanced by Justice BRENNAN, Justice Stewart, and Justice MARSHALL in McKinney. 3 In that case the court held that the standard of proof in an action to abate a public nuisance under California Business and Professional Code § 25604 is by a preponderance of the evidence. 4 Contrary to the Court's characterization, ante, at 92, the Court of Appeal did not hold that Vance v. Universal Amusement Co., 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413, compelled its conclusion "that one of the required procedures is that obscenity be proved beyond a reasonable doubt." 114 Cal.App.3d, at 936, 171 Cal.Rptr., at 93. Rather, the court cited and quoted from Vance in the course of its rejection of the city's argument that a statement towards the end of this Court's long opinion in Mugler v. Kansas, 123 U.S. 623, 673, 8 S.Ct. 273, 303, 31 L.Ed. 205, "support[s] its position that the burden of proof should be by 'clear and convincing evidence.' " 114 Cal.App.3d, at 935, 171 Cal.Rptr., at 92. Since the argument based on Mugler is meritless, it is a mistake to attach undue significance to the court's response to that argument. 5 The reasonable-doubt standard is no stranger to civil litigation. See, e. g., cases cited in 9 J. Wigmore, Evidence § 2498, nn. 2-12 (J. Chadbourn rev. 1981). This Court has even used the standard in several civil contexts. See Radio Corporation of America v. Radio Engineering Laboratories, Inc., 293 U.S. 1, 7-8, 55 S.Ct. 928, 930-31, 79 L.Ed. 163 (invalidity of patent); Ward & Gow v. Krinsky, 259 U.S. 503, 522, 42 S.Ct. 529, 536, 66 L.Ed. 1033 (constitutional invalidity of state statute); Moore v. Crawford, 130 U.S. 122, 134, 9 S.Ct. 447, 450, 32 L.Ed. 878 (invalidity of title); cf. Fidelity Mutual Life Assn. v. Mettler, 185 U.S. 308, 317, 22 S.Ct. 662, 665-666, 46 L.Ed. 922. 6 See Idaho Dept. of Employment v. Smith, 434 U.S. 100, 103-105, 98 S.Ct. 327, 329-30, 54 L.Ed.2d 324 (STEVENS, J., dissenting in part).

23

454 U.S. 139 102 S.Ct. 197 70 L.Ed.2d 298 Caspar W. WEINBERGER, Secretary of Defense, et al., Petitionersv.CATHOLIC ACTION OF HAWAII/PEACE EDUCATION PROJECT, et al. No. 80-1377. Argued Oct. 13, 1981. Decided Dec. 1, 1981. Syllabus Section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA) requires all federal agencies, "to the fullest extent possible," to include an Environmental Impact Statement (EIS) in proposals for major federal actions significantly affecting the environment, and also requires the EIS to be made available to the public, subject to the provisions of the Freedom of Information Act (FOIA). With respect to the construction in Hawaii of new ammunition and weapons storage facilities containing magazines capable of storing nuclear weapons, the Navy prepared an Environmental Impact Assessment, which concluded that the new facilities would have no significant environmental impact, and therefore no EIS was prepared. Because the information is classified for national security reasons, the Navy's regulations forbid it either to admit or to deny that nuclear weapons are actually stored at the now-completed facilities. Before construction of the facilities was completed, respondents brought an action in Federal District Court seeking an injunction against the building of the facilities until an EIS had been filed. The District Court held that, in view of, inter alia, the Navy's own regulations, the Navy had complied with NEPA "to the fullest extent possible" within the meaning of § 102(2)(C). The Court of Appeals reversed, holding that § 102(2)(C) requires the Navy to prepare and release to the public a "Hypothetical Environmental Impact Statement" with regard to a facility capable of storing nuclear weapons. Held: The Court of Appeals erred in requiring the Navy to prepare and release to the public a "Hypothetical Environmental Impact Statement." Pp. 143-147. (a) In inventing such a statement the Court of Appeals departed from Congress' express intent manifested by the explicit language in § 102(2)(C) providing that public disclosure of an EIS should be governed by the FOIA. Here, Exemption 1 of the FOIA, which exempts from disclosure classified material dealing with national security, such as information relating to the storage of nuclear weapons, is applicable. Pp. 143-145. (b) Moreover, by requiring such a statement, the Court of Appeals required the production of a document that would not exist save for what that court thought to be NEPA's disclosure requirements. If the Navy would not be required by the FOIA to release an EIS were one already prepared, it is obviously not required to prepare a "hypothetical" EIS nowhere mentioned in NEPA. Pp. 145. (c) The Navy is not required to prepare an EIS simply because the facilities in question are "nuclear capable," but rather it is the proposal to store nuclear weapons at those facilities that would trigger the obligation to prepare an EIS. Here, it has not been and cannot be established whether the Navy had made such a proposal. P. 146. 643 F.2d 569, reversed and remanded. Sol. Gen. Rex E. Lee, Washington, D. C., for petitioners. Nancy Stearns, New York City, for respondents. Justice REHNQUIST delivered the opinion of the Court. 1 The Court of Appeals for the Ninth Circuit held that § 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 853, 42 U.S.C. § 4332(2)(C), requires the Navy to prepare and release to the public a "Hypothetical Environmental Impact Statement" with regard to the operation of a facility capable of storing nuclear weapons. Catholic Action of Hawaii/Peace Education Project v. Brown, 643 F.2d 569, 572 (1980). Because we conclude that the "Hypothetical Environmental Impact Statement" is a creature of judicial cloth, not legislative cloth, and that it is not mandated by any of the statutory or regulatory provisions upon which the Court of Appeals relied, we reverse its decision. 2 The facts relevant to our decision are not seriously controverted. Pursuant to a decision by the Navy to transfer ammunition and weapons stored at various locations on the island of Oahu, Hawaii, to the West Loch branch of the Lualualei Naval Magazine, the Navy prepared an Environmental Impact Assessment1 (EIA) concerning how the plan would affect the environment. The assessment concluded that the necessary construction of 48 earth-covered magazines and associated structures would have no significant environmental impact, and therefore no Environmental Impact Statement (EIS) was prepared at the construction stage. Construction contracts were let in March 1977 and in April 1978. Construction of the West Loch facilities has been completed and the magazines are now in use. It is stipulated that the magazines are capable of storing nuclear weapons. Because the information is classified for national security reasons, the Navy's regulations forbid it either to admit or to deny that nuclear weapons are actually stored at West Loch.2 3 In 1978, the Navy prepared a Candidate Environmental Impact Statement (CEIS). This CEIS deals generally with the environmental hazards associated with the storage, handling, and transportation of nuclear weapons, but does not refer to any specific site or storage facility. It concludes that no significant hazards to the environment are present. 4 In March 1978, respondents brought this action seeking an injunction against the building of the new facilities at West Loch until an EIS had been filed. Their principal complaint was that the Navy's EIA had ignored the enhanced risk of a nuclear accident resulting from West Loch's proximity to three nearby air facilities, the effects of such an accident on the population and environment of Hawaii, and the effects of radiation from the storage of nuclear weapons in a populated area. The United States District Court for the District of Hawaii concluded that the "construction and use of the storage facilities at West Loch is a major federal action" within the meaning of § 102(2)(C). 468 F.Supp. 190, 193 (1979). But given certain national security provisions of the Atomic Energy Act, 42 U.S.C. § 2011 et seq. (1976 ed. and Supp.IV), and the Navy's own regulations concerning nuclear weapons, the District Court concluded that petitioners had complied with NEPA "to the fullest extent possible." 468 F.Supp., at 193. We find it unnecessary to reach the question posed by the District Court's reliance on the security provisions of the Atomic Energy Act,3 since respondents have made no showing in this case that the Navy has failed to comply, or even need comply, with NEPA's requirements regarding the preparation and public disclosure of an EIS. 5 Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), provides that, "to the fullest extent possible," all federal agencies shall "include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement" discussing, inter alia, the environmental impact of the proposed action and possible alternatives. Section 102(2)(C) also requires that the EIS be made available to the President, the Council on Environmental Quality (CEQ), and the public, subject to the provisions of the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976 ed. and Supp.V). 6 We have previously noted: "The thrust of § 102(2)(C) is . . . that environmental concerns be integrated into the very process of agency decisionmaking. The 'detailed statement' it requires is the outward sign that environmental values and consequences have been considered during the planning stage of agency actions." Andrus v. Sierra Club, 442 U.S. 347, 350, 99 S.Ct. 2335, 2337, 60 L.Ed.2d 943 (1979). Section 102(2)(C) thus serves twin aims. The first is to inject environmental considerations into the federal agency's decisionmaking process by requiring the agency to prepare an EIS. The second aim is to inform the public that the agency has considered environmental concerns in its decisionmaking process. Through the disclosure of an EIS, the public is made aware that the agency has taken environmental considerations into account. Public disclosure of the EIS is expressly governed by FOIA. 42 U.S.C. § 4332(2)(C). 7 The decisionmaking and public disclosure goals of § 102(2)(C), though certainly compatible, are not necessarily coextensive. Thus, § 102(2)(C) contemplates that in a given situation a federal agency might have to include environmental considerations in its decisionmaking process, yet withhold public disclosure of any NEPA documents, in whole or in part, under the authority of an FOIA exemption. That the decisionmaking and disclosure requirements of NEPA are not coextensive has been recognized by the Department of Defense's regulations, both at the time the West Loch facility was constructed4 and today.5 8 In an apparent attempt to balance what it considered to be the disclosure requirements of NEPA with national security interests, the Court of Appeals concluded that petitioners could prepare and disclose an EIS that would assess the impact of the storage of nuclear weapons at West Loch without revealing specific information regarding the number and type of nuclear weapons to be stored at the facility. 643 F.2d, at 572. The EIS could hypothesize, but not concede, that the facility will be used for the purpose for which it has been made capable. Ibid. But in inventing the "Hypothetical Environmental Impact Statement," the Court of Appeals departed from the express intent of Congress manifested by the explicit language in § 102(2)(C). That language provides that public disclosure of the EIS shall be governed by FOIA. As we concluded in EPA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973), FOIA was intended by Congress to balance the public's need for access to official information with the Government's need for confidentiality. Of the nine exemptions in Subsection (b) of FOIA, we think two are relevant in determining whether the Navy must release an EIS. Exemption 3, 5 U.S.C. § 552(b)(3), which authorizes the withholding of documents "specifically exempted from disclosure by statute," arguably exempts the publication of an EIS under the Atomic Energy Act. But we find it unnecessary to decide this question, because to us it is clear that Exemption 1, 5 U.S.C. § 552(b)(1), is applicable. 9 Exemption 1 exempts from disclosure matters that are "(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." Executive Order No. 12065, 3 CFR 190 (1978-1979 Comp.), confers upon specified officials the power to classify information if its release would pose a threat to national security. Virtually all information relating to the storage of nuclear weapons is classified. Thus, any material properly classified pursuant to Executive Order No. 120656 is exempt from disclosure under Exemption 1, and therefore is exempt from the public disclosure requirements of NEPA. 10 Congress has thus effected a balance between the needs of the public for access to documents prepared by a federal agency and the necessity of nondisclosure or secrecy. The Court of Appeals in this case should have accepted the balance struck by Congress, rather than engrafting onto the statutory language unique concepts of its own making. By requiring the Navy to prepare a "hypothetical" EIS, the Court of Appeals required the production of a document that would not exist save for what that court thought to be NEPA's public disclosure requirements. But NEPA's public disclosure requirements are expressly governed by FOIA. In NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161-162, 95 S.Ct. 1504, 1521, 44 L.Ed.2d 29 (1975), we held that FOIA "does not compel agencies to write opinions in cases in which they would not otherwise be required to do so. It only requires disclosure of certain documents which the law requires the agency to prepare or which the agency has decided for its own reasons to create." See Forsham v. Harris, 445 U.S. 169, 185-186, 100 S.Ct. 978, 987-988, 63 L.Ed.2d 293 (1980); Kissinger v. Reporters Committee, 445 U.S. 136, 152, 100 S.Ct. 960, 969, 63 L.Ed.2d 267 (1980). It follows that if the Navy would not be required by FOIA to release an EIS were one already prepared, it is obviously not required to prepare a "hypothetical" EIS nowhere mentioned in NEPA. 11 Since the public disclosure requirements of NEPA are governed by FOIA, it is clear that Congress intended that the public's interest in ensuring that federal agencies comply with NEPA must give way to the Government's need to preserve military secrets. In the instant case, an EIS concerning a proposal to store nuclear weapons at West Loch need not be disclosed. As we indicated earlier, whether or not nuclear weapons are stored at West Loch is classified information exempt from disclosure to the public under Exemption 1. 12 If the Navy proposes to store nuclear weapons at West Loch, the Department of Defense's regulations7 can fairly be read to require that an EIS be prepared solely for internal purposes, even though such a document cannot be disclosed to the public. The Navy must consider environmental consequences in its decisionmaking process, even if it is unable to meet NEPA's public disclosure goals by virtue of FOIA Exemption 1. 13 It does not follow, however, that the Navy is required to prepare an EIS in this case. The Navy is not required to prepare an EIS regarding the hazards of storing nuclear weapons at West Loch simply because the facility is "nuclear capable." As we held in Kleppe v. Sierra Club, 427 U.S. 390, 405-406, 96 S.Ct. 2718, 2728, 49 L.Ed.2d 576 (1976), an EIS need not be prepared simply because a project is contemplated, but only when the project is proposed. To say that the West Loch facility is "nuclear capable" is to say little more than that the Navy has contemplated the possibility that nuclear weapons, of whatever variety, may at some time be stored here. It is the proposal to store nuclear weapons at West Loch that triggers the Navy's obligation to prepare an EIS. Due to national security reasons, however, the Navy can neither admit nor deny that it proposes to store nuclear weapons at West Loch. In this case, therefore, it has not been and cannot be established that the Navy has proposed the only action that would require the preparation of an EIS dealing with the environmental consequences of nuclear weapons storage at West Loch. 14 Ultimately, whether or not the Navy has complied with NEPA "to the fullest extent possible" is beyond judicial scrutiny in this case. In other circumstances, we have held that "public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated." Totten v. United States, 92 U.S. 105, 107, 23 L.Ed. 605 (1876). See United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). We confront a similar situation in the instant case. 15 The decision of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded with instructions to reinstate the judgment of dismissal entered by the District Court. 16 It is so ordered. 17 Justice BLACKMUN, with whom Justice BRENNAN joins, concurring in the judgment. 18 The law to be applied in this case is relatively simple and straightforward. If the Navy proposes to engage in a major action that will have a significant environmental effect, it must prepare an environmental impact statement (EIS) addressing the consequences of the proposed activity. If disclosing the contents, or even the existence, of the EIS will reveal properly classified materials, the Navy need not publish the document. If nonclassified data is segregable and properly disclosable under Executive Order No. 12065, it must be released to the public. I write separately because I believe that the Court understates the first and third of these points, and overstates the second. 19 The Court states rather obliquely that if the Navy proposes to store nuclear weapons, "the Department of Defense's regulations can fairly be read to require that an EIS be prepared solely for internal [Navy] purposes." Ante, at 146 (footnote omitted). In fact, the Defense Department regulations explicitly declare that "[t]he fact that a proposed action is of a classified nature does not relieve the proponent of the action from complying with the NEPA," although in such a circumstance the required EIS "shall be prepared, safeguarded and disseminated in accordance with the requirements applicable to classified information." 46 Fed.Reg. 22892, 22894 (1981) (to be codified in 32 CFR § 775.5). In this, the Defense regulations simply echo the statutory language: NEPA flatly requires that, "to the fullest extent possible," all federal agencies "include in every recommendation or report on . . . major Federal actions significantly affecting the quality of the human environment, a detailed [environmental impact] statement." 42 U.S.C. § 4332(C) (emphasis added). No exception is made for a confidential or classified proposal. Similarly, regulations promulgated by the Council on Environmental Quality provide simply that "environmental impact statements which address classified proposals may be safeguarded and restricted from public dissemination," 40 CFR § 1507.3(c) (1981); the regulations do not and could not, consistently with the statute—suggest that classified proposals are exempt from NEPA's EIS requirement. 20 It seems to me that this follows necessarily from the function of the EIS. One of its purposes—if not its principal purpose—is to guarantee that "environmental concerns are . . . interwoven into the fabric of agency planning." Andrus v. Sierra Club, 442 U.S. 347, 351, 99 S.Ct. 2335, 2337-2338, 60 L.Ed.2d 943 (1979). The CEQ has recognized: 21 "The primary purpose of an environmental impact statement is to serve as an action-forcing device to insure that the policies and goals defined in [NEPA] are infused into the ongoing programs and actions of the Federal Government. . . . An environmental impact statement is more than a disclosure document. It shall be used by Federal officials in conjunction with other relevant material to plan actions and make decisions." 40 CFR § 1502.1 (1981). 22 This is no less true when the public is unaware of the agency's proposals. Indeed, the public's inability to participate in military decisionmaking makes it particularly important that, in cases such as the one before us, the EIS "serve practically as an important contribution to the decisionmaking process." § 1502.5. 23 The Court obviously is quite correct in holding that properly classified materials need not be disclosed under NEPA; even information concerning the existence of an EIS may be withheld when publication would divulge sensitive military information. It remains true, however, that the statute is in part intended to inform the public, see ante, at 143, and this informational purpose does not entirely lose its vitality when classified documents are involved. Again, the Defense regulations specifically direct that "[w]hen feasible, [EIS's] shall be organized in such a manner that classified portions are included as annexes so that the unclassified portions can be made available to the public," 46 Fed.Reg. 22892, 22894 (1981); further, the CEQ agrees that EIS's may be organized in such a way "that the unclassified portions can be made available to the public," 40 CFR § 1507.3(c) (1981). In a given case, then, the military must determine whether the information at issue, consistent with the dictates of the relevant Executive Orders, can be released. That principle is applicable in this and in every other case involving classified military material; I must assume that the Court does not hold differently. 24 It seems to me that the Court need not go beyond these relatively straightforward principles. FOIA's first exemption, 5 U.S.C. § 552(b)(1), defeats respondents' attempt to obtain classified material; it therefore is unnecessary to address the applicability or vitality of Totten v. United States, 92 U.S. 105 (1876), which suggested as a matter of "public policy" that certain suits involving confidential data could not be maintained. Id., at 107. Similarly, it is unnecessary to address the applicability of NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975), to this case.* Petitioners convincingly argued that publishing a hypothetical EIS would itself disclose confidential material, and would therefore run afoul of the FOIA's first exemption. And, in any event, as the Court properly notes, ante, at 146, the respondents have yet to establish that any EIS need be prepared for the West Loch project. That is enough to dispose of the question of a hypothetical EIS. 25 Accordingly, I concur in the judgment of the Court. 1 An Environmental Impact Assessment is a document prepared by a federal agency in order to determine whether a formal Environmental Impact Statement should be prepared. See 40 CFR § 1508.9 (1981). 2 Navy Security Classification Guide for Nuclear Weapons, Navy SWOP 55-1 (1974); Dept. of Navy, OPNAV Instruction 5721.1C (1975). 3 42 U.S.C. §§ 2014(y), 2161, 2162, 2271. 4 32 CFR § 214.8 (1978) (repealed). 5 32 CFR § 214.6 (1980). 6 Executive Order No. 12065 superseded Executive Order No. 11652, 3 CFR 678 (1971-1975 Comp.), which in turn superseded Executive Order No. 10501, 3 CFR 979 (1949-1953 Comp.). Our decision in EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), rested on an application of Executive Order No. 10501. 410 U.S., at 81, and n. 7, 84, and n. 9, 93 S.Ct., at 833, and n. 7, 834, and n. 9. 7 See 32 CFR § 214.8 (1978) (repealed); 32 CFR § 214.6 (1980). * The Court properly notes that Sears held that the FOIA " 'does not compel agencies to write opinions in cases in which they would not otherwise be required to do so.' " Ante, at 145, quoting 421 U.S., at 161-162, 95 S.Ct., at 1521. The Court goes on to suggest that the Court of Appeals' analysis runs afoul of Sears, because that court "required [the Navy] to prepare a 'hypothetical' EIS nowhere mentioned in NEPA." Ante, at 145. But the Court of Appeals did not explicitly require the preparation of a series of hypothetical documents; instead, it stated that "factual information . . . [used in the EIS] can be based on a series of hypotheses," Catholic Action of Hawaii/Peace Education Project v. Brown, 643 F.2d 569, 572 (CA9 1980) (emphasis added), thus authorizing the Navy to prepare advisory studies as a "smokescreen" if it wished to do so. This does not raise quite the same issue as that involved in Sears. There, the Court held that a plaintiff could not compel the preparation of a document in order to obtain information not yet reduced to documentary form; here, respondents are trying to obtain data which they presume are contained in an existing study, with the Court of Appeals suggesting the production of new documents for the independent purpose of protecting national security. And there is, as well, another distinction between the cases: while it makes use of FOIA's disclosure provisions, NEPA is in essence an "action-forcing" statute. FOIA itself, however, is not. It could be argued that the Court of Appeals' analysis violates the holding of Kleppe v. Sierra Club, 427 U.S. 390, 405-406, 96 S.Ct. 2718, 2728, 49 L.Ed.2d 576 (1976), where this Court concluded that an EIS need be prepared only when a project is actually proposed; in seeming contradiction of that holding, the Court of Appeals stated that an EIS must be developed "[i]f nuclear storage is a potential choice." 643 F.2d, at 571 (emphasis added). But it is less clear to me that the strictures of Sears are relevant here, and I would not reach the question.

45

454 U.S. 151 102 S.Ct. 205 70 L.Ed.2d 309 James G. WATT, Secretary of the Interior, et al., Petitioners,v.ENERGY ACTION EDUCATIONAL FOUNDATION et al. No. 80-1464. Argued Oct. 5, 1981. Decided Dec. 1, 1981. Syllabus Under the Outer Continental Shelf Lands Act of 1953 (Act), the Secretary of the Interior (Secretary) is authorized to lease tracts of the Outer Continental Shelf (OCS) for the exploration for, and development of, mineral resources, including oil and gas. As originally passed, the Act authorized the Secretary, in his discretion, to solicit bids either by fixing a royalty rate of not less than 121/2%, and requiring bids on an initial "cash bonus" to be paid when the lease was awarded, or by fixing the amount of the cash bonus, and requiring bids on the royalty rate. In practice, virtually all tracts were leased on the basis of a fixed royalty, with bidding on the amount of the cash bonus. However, the Outer Continental Shelf Lands Act Amendments of 1978 (1978 Amendments) increased the number of authorized bidding systems to 10, retaining the original system and authorizing new systems, some of which also involve cash bonus bidding, while others use a factor other than the cash bonus as the bidding variable. The 1978 Amendments direct the Secretary to develop a 5-year plan of experimentation with the new systems, requiring him to experiment with the bidding systems other than the traditional cash bonus, fixed royalty system in not less than 20% but not more than 60% of the total area offered for leasing each year, unless he determines that those percentage requirements are inconsistent with the 1978 Amendments' purposes. The 1978 Amendments assure ongoing congressional oversight of the Secretary's leasing activities by requiring frequent reports to Congress. To date, the Secretary has used two of the nontraditional bidding systems in leases covering 49% of the total area offered. However, he has not experimented with any of the systems using a factor other than the size of a cash bonus as the bidding variable. Respondents, including the State of California, brought suit for declaratory and injunctive relief, alleging, inter alia, that the Secretary has abused his discretion by failing to experiment with systems that do not use the size of a cash bonus as the bidding variable. The District Court denied both parties' motions for summary judgment, but the Court of Appeals held, inter alia, that the 1978 Amendments require the Secretary to experiment with at least some of the bidding systems that do not use the size of a cash bonus as the bidding variable. Held: 1. California has standing to challenge the Secretary's choice of bidding systems. Because the 1978 Amendments require the Federal Government to turn over a fair share of the revenues of an OCS lease to the neighboring coastal State whenever the Federal Government and the State own adjoining portions of an OCS oil and gas pool, California has a direct financial stake in federal OCS leasing off the California coast. In alleging that the bidding systems currently used by the Secretary are incapable of producing a fair market return, California asserts the kind of "distinct and palpable injury" that is required for standing. And California also satisfies the requirement that there be a "fairly traceable" causal connection between the injury it claims and the conduct it challenges, so that if the relief sought is granted, the injury will be redressed. Pp. 160-162. 2. The Court of Appeals erred in compelling the Secretary to experiment with non-cash-bonus bidding systems. Pp. 162-169. (a) Nothing in the 1978 Amendments suggests that Congress, in committing the Government to the goal of obtaining fair market value for OCS oil and gas resources, intended to channel the Secretary's discretion in choosing among the alternative bidding systems, and nothing in the statute singles out the non-cash-bonus systems for special consideration. The language of the 1978 Amendments requires experimentation with at least some of the new bidding systems, but leaves the details to the Secretary's discretion. Pp. 162-165. (b) Nor does the legislative history of the 1978 Amendments compel the conclusion that the Congress as a whole intended to limit the Secretary's discretion to choose among the various experimental bidding systems. When viewed in context, unfavorable references to "cash bonus" bidding show congressional dissatisfaction with large front-end payments associated with the traditional cash bonus bid, fixed royalty system then in effect, not with all forms of cash bonus bidding. Pp. 165-168. 210 U.S.App.D.C. 20, 654 F.2d 735, reversed. Louis F. Claiborne, Washington, D.C., for petitioners. John Silard, Washington, D.C., for respondents. Justice O'CONNOR delivered the opinion of the Court. 1 We are asked to review a decision of the United States Court of Appeals for the District of Columbia Circuit compelling the Secretary of the Interior to experiment with the use of certain statutorily defined bidding systems in awarding leases for oil and gas exploration and development on the Outer Continental Shelf. Because the decision below incorrectly construes the Outer Continental Shelf Lands Act Amendments of 1978, 92 Stat. 629, 43 U.S.C. § 1331 et seq. (1976 ed. and Supp.III), we reverse. 2 * The Outer Continental Shelf Lands Act of 1953 (OCS Lands Act), 67 Stat. 462, as amended, 92 Stat. 629, 43 U.S.C. § 1331 et seq. (1976 ed. and Supp. III), authorizes the Secretary of the Interior to lease tracts of the Outer Continental Shelf (OCS)1 for the exploration and development of mineral resources, including oil and gas. As originally passed, the OCS Lands Act authorized the Secretary to solicit sealed bids either by fixing a royalty rate of not less than 121/2%, and requiring bids on the amount of an initial "cash bonus" to be paid at the time the lease was awarded, or by fixing the amount of the cash bonus, and requiring bids on the royalty rate. 43 U.S.C. § 1337(a). The OCS Lands Act vested complete discretion in the Secretary to choose between these two bidding systems. In practice, prior to 1978 virtually all tracts were leased on the basis of a fixed royalty of 162/3% of the gross value of production, with bidding on the amount of the cash bonus. See H.R.Rep.No.95-590, p. 138 (1977); S.Rep.No.95-284, p. 72 (1977), U.S. Code Cong. & Admin. News 1978, p. 1450. 3 During the mid-1970's, the Nation's increasing dependence on imported oil focused public attention on the OCS as a potential source of domestic petroleum and natural gas. See H.R.Rep.No.95-590, supra, at 53-54. At the same time, the traditional OCS bidding procedures came under close scrutiny because dramatic increases in petroleum prices made existing cash bonuses seem miserly relative to the revenues generated from wells on OCS leaseholds. Members of Congress began to express reservations about the ability of the traditional cash bonus, fixed royalty system to assure a fair return to the Government, principally because it appeared that only the major oil companies could risk paying a large cash bonus to lease a tract of unknown value. Because the number of bidders was often limited to a handful of giant concerns, competition for the leases seemed tepid, and there was no assurance that the ultimate return to the Government was adequate. See, e. g., id., at 47, 54. 4 Responding to these and other pressures for modernization of the OCS Lands Act, Congress passed the Outer Continental Shelf Lands Act Amendments of 1978 (1978 Amendments), Pub.L.95-372, 92 Stat. 629.2 Through the 1978 Amendments, Congress sought to experiment with alternatives to the traditional bidding system. To this end, it increased the number of authorized bidding systems from 2 to 10, 43 U.S.C. § 1337(a)(1) (1976 ed., Supp. III), and directed the Secretary of the Interior to develop a 5-year plan of experimentation with the new systems. §§ 1337(a)(5)(B), 1344. Four of the newly authorized systems use a cash bonus bid (including the cash bonus, fixed royalty system, which was specifically retained in § 1337(a)(1)(A)),3 three use a royalty rate bid,4 one uses a "profit-share" bid,5 and two use a "work-commitment" bid.6 5 Although the 1978 Amendments, like the original OCS Lands Act, give the Secretary of the Interior the discretion to select among the various authorized bidding systems, that discretion is no longer total. The statute now requires the Secretary to experiment with the nine non-traditional systems in "not less than 20 per centum and not more than 60 per centum of the total area offered for leasing each year," § 1337(a)(5)(B), unless he determines that those percentage requirements are "inconsistent with the purposes and policies" of the 1978 Amendments.7 6 The 1978 Amendments assure ongoing congressional oversight of the Secretary of the Interior's leasing activities by requiring frequent reports to Congress on the operation of the bidding systems. For example, the Secretary of Energy, who has responsibility for issuing regulations governing OCS bidding,8 must report within six months of the end of each fiscal year "with respect to the use of [the] various bidding options," including, "if applicable, the reasons why a particular bidding system has not been or will not be utilized." § 1337(a)(9). In addition, the Secretary of the Interior must submit each fiscal year a report that includes "an evaluation of the competitive bidding systems permitted under [the 1978 Amendments], and, if applicable, the reasons why a particular bidding system has not been utilized," as well as "an evaluation of alternative bidding systems not permitted under [the 1978 Amendments], and why such system or systems should or should not be utilized." §§ 1343(2)(A) and (B). 7 To date, the Secretary of Energy has issued regulations for a number of the bidding systems, including three of the four systems using cash bonus bidding, 10 CFR §§ 375, 376 (1981) (the cash bonus bid, fixed royalty system and the cash bonus bid, fixed sliding-scale royalty system); §§ 376, 390 (the cash bonus bid, fixed net profit-share system), as well as the royalty bid, fixed cash bonus system, §§ 375, 376, the net profit-share bid, fixed cash bonus system, §§ 376, 390, and the work-commitment bid, fixed cash bonus and fixed royalty system, 46 Fed.Reg. 35614 (1981) (to be codified in 10 CFR §§ 376, 390). For his part, the Secretary of the Interior has prepared a 5-year program for the period from June 1980 to May 1985, calling for 36 sales, each involving a number of tracts. Brief for Petitioners 7. The Secretary of the Interior has so far used the nontraditional bidding systems in leases covering 49% of the total area offered, but has experimented with only two of the nine authorized alternative bidding systems: the cash bonus bid, fixed profit-share system, and the cash bonus bid, fixed sliding-scale royalty system. Id., at 8, and n.12. The Secretary of the Interior has not experimented, however, with any of the systems using a factor other than the size of a cash bonus as the bidding variable.9 II 8 This litigation grows out of the Secretary of the Interior's continued reliance on cash bonus bidding systems. The respondents here, nine consumer groups, two state governmental entities, and three private citizens, brought suit against the United States, the Secretary of the Interior, and the Secretary of Energy, alleging that the Secretaries had abused their discretion by failing to experiment with bidding systems that do not use the size of a cash bonus as the bidding variable. In essence, they complained that bonus bidding cannot generate adequate competition to yield a fair market return for OCS oil and gas as required by the 1978 Amendments. They sought declaratory and injunctive relief prohibiting further lease sales until the Secretary of Energy promulgated regulations for each of the alternative bidding systems, and prohibiting the further use of the cash bonus, low royalty bidding systems. 9 Three days after they filed suit and four days before a planned lease sale, the respondents filed a motion for a preliminary injunction barring all further lease sales until regulations had been promulgated for each of the bidding options contained in the 1978 Amendments. The District Court denied the motion because the respondents had not shown a likelihood of prevailing on the merits, and because the pace at which the Secretary of Energy was issuing regulations was not unlawfully slow in light of the complexity involved in preparing such regulations.10 The Court of Appeals affirmed the District Court's ruling and remanded the case for further proceedings. Energy Action Educational Foundation v. Andrus, 203 U.S.App.D.C. 169, 631 F.2d 751 (1979). 10 On remand, both parties moved for summary judgment, and the respondents renewed their motion for a preliminary injunction barring future lease sales until additional bidding system regulations had been issued. The District Court denied all motions for summary judgment as well as the respondents' motion for a preliminary injunction, and the respondents once more appealed. 11 This time, the Court of Appeals affirmed the District Court only to the extent that it refused to enjoin lease sales scheduled for September, October, and November 1980. Turning to the underlying dispute, the court concluded both that the 1978 Amendments require the Secretary of the Interior to experiment with at least some of the bidding systems that do not use the size of a cash bonus as the bidding variable, and that the Secretary of Energy must issue appropriate regulations for the alternative bidding systems.11 Energy Action Educational Foundation v. Andrus, 210 U.S.App.D.C. 20, 654 F.2d 735 (1980). 12 We granted the Government's petition for certiorari to review this construction of the 1978 Amendments. 450 U.S. 1040, 101 S.Ct. 1756, 68 L.Ed.2d 237. III 13 Before examining the merits, we must consider the petitioners' contention that the respondents do not have standing to challenge the Secretary of the Interior's choice of bidding systems. 14 There are three groups of plaintiffs in this litigation: (1) the State of California, which claims standing as an involuntary "partner" with the Federal Government in the leasing of OCS tracts in which the underlying pool of gas and oil lies under both the OCS and the 3-mile coastal belt controlled by California; (2) California and the city of Long Beach, which compete with the Federal Government in the leasing of off-shore oil and gas properties; and (3) consumers of oil and gas and of oil-and gas-derived products.12 Because we find California has standing, we do not consider the standing of the other plaintiffs. See Arlington Heights v. Metropolitan Housing Development Corp, 429 U.S. 252, 264, and n. 9, 97 S.Ct. 555, 562, 50 L.Ed.2d 450 (1977); Buckley v. Valeo, 424 U.S. 1, 12, 96 S.Ct. 612, 631, 46 L.Ed.2d 659 (1976) (per curiam). 15 The 1978 Amendments require the Federal Government to turn over a fair share of the revenues of an OCS lease to the neighboring coastal State whenever the Federal Government and the State own adjoining portions of an OCS oil and gas pool. See 43 U.S.C. § 1337(g)(4) (1976 ed., Supp. III). California thus has a direct financial stake in federal OCS leasing off the California coast. In alleging that the bidding systems currently used by the Secretary of the Interior are incapable of producing a fair market return, California clearly asserts the kind of "distinct and palpable injury," Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), that is required for standing. 16 To demonstrate that it has standing, however, California must also show that there is a "fairly traceable" causal connection between the injury it claims and the conduct it challenges, Arlington Heights v. Metropolitan Housing Development Corp., supra, at 261, 97 S.Ct., at 561, so that if the relief sought is granted, the injury will be redressed, Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-46, 96 S.Ct. 1917, 1925-1928, 48 L.Ed.2d 450 (1976). The petitioners argue that the relief California seeks—experimental use on some OCS lease tracts of non-cash-bonus bidding systems—will not ensure that the Secretary will try these systems on parcels leased off the California coast. According to the petitioners, even if California were to win its suit, cash bonus systems might nevertheless still be used to lease tracts overlying California's pools. The petitioners assert that California therefore lacks standing because it has failed to show that the relief requested would cause the Secretary of the Interior to use non-cash-bonus bidding systems on California's parcels. 17 The essence of California's complaint, however, is that the Secretary of the Interior, by failing to test non-cash-bonus systems, has breached a statutory obligation to determine through experiment which bidding system works best. According to California, only by testing non-cash-bonus systems can the Secretary of the Interior carry out his duty to use the best bidding systems and thereby assure California a fair return for its resources. The petitioners' argument, California contends, improperly assumes that the Secretary of the Interior would perversely refuse to adopt a non-cash-bonus bidding system proved by experiment to be superior to the cash bonus alternatives. 18 We share California's confidence that, after experimentation, the Secretary would use the most successful bidding system on all suitable OCS lease tracts, including those off the California coast. For this reason, we agree with California that it has standing to challenge the Secretary of the Interior's refusal to experiment with non-cash-bonus bidding systems. Therefore, we proceed to the merits. IV 19 In passing the 1978 Amendments, Congress committed the Government to the goal of obtaining fair market value for OCS oil and gas resources. The 1978 Amendments themselves proclaim this intention,13 and the legislative history is replete with references to this purpose.14 The respondents urge that non-cash-bonus bidding systems are more likely to achieve the statutory objectives than the cash bonus systems used to date, so that the Secretary of the Interior's continued reliance on cash bonus bidding violates the statutory scheme. 20 We begin, as always in a case in which the meaning of a statute is at issue, by examining Congress' language. If Congress meant to restrain the Secretary of the Interior's discretion in experimenting with the various alternative bidding systems, we can expect the statute to reflect that intent. But it does not. 21 Despite the various reservations concerning the traditional cash bonus bidding system recorded in the legislative history of the 1978 Amendments, Congress not only failed to repudiate the traditional cash bonus, fixed royalty system specified in § 1337(a)(1)(A), but affirmatively directed that the Secretary of the Interior use that system in the bidding for tracts covering at least 40% of the total area leased in each year of the 5-year plan. § 1337(a)(5)(B). The only express limitation Congress put on the use of the traditional system was that it not be used on more than 80% of the total area offered each year. Ibid. In short, Congress can hardly be said to have rejected even the traditional cash bonus system. Moreover, among the experimental bidding alternatives listed in the 1978 Amendments, Congress expressly specified cash bonus as the bid variable in three systems.15 Most significantly, Congress left to "the discretion of the Secretary," § 1337(a)(1), the choice among the various nontraditional alternatives, evidently leaving to his expert administrative determination the complex, technical problem of deciding which alternative bidding systems are more likely to further the statute's objectives. In addition, Congress granted the Secretary further discretion to abandon the statutory requirements for the percentage use of the nontraditional alternatives, should he determine that those requirements are inconsistent with the statutory purposes and policies. § 1337(a)(5)(B). 22 The respondents argue that the Secretary's discretion is limited by § 1344(a)(4), which directs that "[l]easing activities shall be conducted to assure receipt of fair market value for the lands leased and the rights conveyed by the Federal Government." According to the respondents, the Secretary is violating § 1344(a)(4) by refusing to try non-cash-bonus bidding, because cash bonus bidding allegedly does not assure that fair market value is received for the Government's resources. 23 Section 1344(a)(4) cannot support the weight the respondents attach to it. Section 1344 directs the Secretary of the Interior to "prepare and periodically revise, and maintain an oil and gas leasing program" consistent with the "principles" enumerated in §§ 1344(a)(1)-(4). The receipt of fair market value, the fourth listed principle, is only one of many general considerations commended to the Secretary's attention.16 The section directs that the Secretary's entire leasing program be consistent with the principles enumerated. Yet elsewhere the statute requires the Secretary's program to use the traditional cash bonus, fixed royalty system on as much as 80%, and on no less than 40%, of the acreage leased. § 1337(a)(5)(B). So Congress cannot have considered the traditional cash bonus system incapable of providing a fair market return, for that is the one system Congress required the Secretary to use. We therefore conclude that § 1344(a)(4) cannot fairly be read to constrain indirectly the Secretary's discretion in choosing to use the alternative cash bonus bidding systems. 24 The only express statutory check on the Secretary of the Interior's discretion is the requirement that he periodically report to the Congress his reasons for failing to use any of the alternative bidding systems.17 The statute thus recognizes that, in appropriate circumstances, some of the alternative bidding systems may not be used. Plainly, Congress considered close congressional scrutiny to be sufficient restraint on the Secretary's discretion to choose among the statutory options. 25 In short, nothing in the statute suggests that Congress intended to channel the Secretary of the Interior's discretion in choosing among the alternative bidding systems, and nothing in the statute singles out the non-cash-bonus systems for special consideration. Therefore, we conclude that the language of the 1978 Amendments requires experimentation with at least some of the new bidding systems, but leaves the details to the Secretary's discretion. B 26 According to the respondents, however, the legislative history of the 1978 Amendments mandates constraints on the Secretary of the Interior's discretion not expressly stated in the statute. In particular, the respondents cite the repeated, unfavorable references to "cash bonus" bidding found throughout the legislative history to support their contention that Congress intended to direct the Secretary of the Interior to experiment with bidding systems in which the bidding variable is not the size of a cash bonus. 27 What clearly emerges from the legislative history, however, is not congressional dissatisfaction with all forms of cash bonus bidding, but rather with large front-end payments. Plainly, Congress intended to encourage more competitive bidding by requiring experimentation with bidding alternatives, regardless of the bid variable involved, that would reduce the size of the front-end payments associated with the traditional cash bonus bid, fixed royalty system.18 Such a reduction of the front-end payments can be achieved, however, with any bidding system that increases the amount of the payments made throughout the life of a lease, since a bidder will be willing to pay less "up front" if he expects to pay more "downstream." This inverse relationship between the size of up-front and downstream payments holds true, of course, regardless of which factor is used as a bidding variable. Congress plainly understood this relationship, because it expressly included three new cash bonus bid systems among the experimental alternatives intended to reduce large front-end payments. 28 Contrary to the respondents' suggestions, Congress' references to "bonus bidding" and the "cash bonus system," when seen in context, are merely a shorthand description of the traditional cash bonus bid, fixed royalty system that was the only system that had been extensively used at the time the 1978 Amendments were under consideration. That the term "bonus bidding" in context refers only to the traditional system is evident because Congress pointedly and repeatedly contrasted the perceived disadvantages of "bonus bidding" with its hopes for the alternatives listed in §§ 1337(a)(1)(B)-(G), although three of those enumerated alternatives retain the size of a cash bonus as the bidding variable. Congressional references to the "cash bonus system" thus implicate only the traditional system described in § 1337(a)(1)(A).19 V 29 In sum, we are unable to find anything, either in the legislative history or in the 1978 Amendments themselves, that compels the conclusion that the Congress as a whole intended to limit the Secretary of the Interior's discretion to choose among the various experimental bidding systems. It is not for us, or for the Court of Appeals, to decide whether the Secretary of the Interior is well advised to forgo experimentation with the non-cash-bonus alternatives. That question is for Congress alone to answer in the exercise of its oversight powers. 30 For these reasons, the judgment of the Court of Appeals compelling the use of non-cash-bonus bidding systems is hereby reversed. 31 It is so ordered. 1 The Outer Continental Shelf is defined by statute to mean "all submerged lands lying seaward and outside of the area of lands beneath navigable waters . . . and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control." 43 U.S.C. § 1331(a). The term "lands beneath navigable waters" is itself given an extensive definition in 43 U.S.C. § 1301, but generally means the undersea lands within three miles of the coastline. 2 The "basic purpose" of the 1978 Amendments was to "promote the swift, orderly and efficient exploitation of our almost untapped domestic oil and gas resources in the Outer Continental Shelf," H.R.Rep.No.95-590, p. 53 (1977), U.S. Code Cong. & Admin. News 1978, p. 1460, and the Amendments were broadly designed to achieve that aim. We are concerned here, however, only with those provisions of the 1978 Amendments having to do with bidding systems for OCS leases. 3 Title 43 U.S.C. § 1337(a)(1) (1976 ed., Supp. III) authorizes: (1) a "cash bonus bid with a royalty at not less than 121/2 per centum fixed by the Secretary in amount or value of the production saved, removed, or sold," § 1337(a)(1)(A); (2) a "cash bonus bid . . . and a diminishing or sliding royalty based on such formulae as the Secretary shall determine as equitable to encourage continued production from the lease area as resources diminish, but not less than 121/2 per centum at the beginning of the lease period in amount or value of the production saved, removed, or sold," § 1337(a)(1)(C); (3) a "cash bonus bid with a fixed share of the net profits of no less than 30 per centum to be derived from the production of oil and gas from the lease area," § 1337(a)(1)(D); and (4) a "cash bonus bid with a royalty at no less than 121/2 per centum fixed by the Secretary in amount or value of the production saved, removed, or sold and a fixed per centum share of net profits of no less than 30 per centum to be derived from the production of oil and gas from the lease area," § 1337(a)(1)(F). 4 Section 1337(a)(1)(B) authorizes: a "variable royalty bid based on a per centum in amount or value of the production saved, removed, or sold, with either [1] a fixed work commitment based on dollar amount for exploration or [2] a fixed cash bonus as determined by the Secretary, or [3] both." 5 Section 1337(a)(1)(E) authorizes a "fixed cash bonus with the net profit share reserved as the bid variable." 6 Section 1337(a)(1) authorizes: (1) a "work commitment bid based on a dollar amount for exploration with a fixed cash bonus, and a diminishing or sliding scale royalty based on such formulae as the Secretary shall determine as equitable to encourage continued production from the lease area as resources diminish, but not less than 121/2 per centum at the beginning of the lease period in amount or value of the production saved, removed, or sold," § 1337(a)(1)(C); and (2) a "work commitment bid based on a dollar amount for exploration with a fixed cash bonus and a fixed royalty in amount or value of the production saved, removed, or sold," § 1337(a)(1)(G). 7 Section 1337(a)(9)(E) requires that his determination be explained to Congress. 8 Under the 1978 Amendments, the Secretaries of the Interior and of Energy work together on the OCS leasing program. Competitive bidding for OCS leases is to be carried out pursuant to "regulations promulgated in advance," § 1337(a)(1), and the Department of Energy Organization Act, 42 U.S.C. §§ 7152(b), 7153 (1976 ed., Supp. III), gives the Secretary of Energy the responsibility for issuing such regulations in consultation with the Secretary of the Interior. The Secretary of Energy also has authority to develop bidding systems other than the 10 specifically enumerated in § 1337(a)(1), provided any new system has no more than one bidding variable and is not disapproved by Congress. §§ 1337(a)(1)(H), (a)(4)(A). 9 During the course of the present litigation, the Secretary of the Interior filed an affidavit with the District Court stating that he does not intend to use either profit-share or work-commitment bidding because he does "not believe the purposes of the OCS Lands Act or the best interests of the nation would be served by the use" of either system. Affidavit of James G. Watt, Secretary of the Interior, Energy Action Educational Foundation v. Watt, No. 79-1633 (DC) (sworn May 8, 1981), reprinted in App. to Brief for Respondents 2a-3a. The Department of the Interior is on record as disfavoring royalty-share bidding as well. See Energy Action Educational Foundation v. Andrus, 210 U.S.App.D.C. 20, 28, and n.44, 654 F.2d 735, 743, and n.44 (1980). As reported to Congress, the bidding systems used during fiscal years 1978 through 1980 were as follows. In fiscal year 1978, three lease sales were held, with 218 tracts leased. Of those, 30 tracts were leased under the fixed cash bonus, royalty bid system, 41 under the cash bonus bid, sliding-scale royalty system, and the remainder under the traditional cash bonus bid, fixed 162/3% royalty system. Department of the Interior, OCS Oil and Gas Leasing: An Annual Report on the Leasing and Production Program, Fiscal Year 1978. In fiscal year 1979, five lease sales were held, with 290 tracts leased. Of those, 161 were leased under the traditional cash bonus bid, 162/3% royalty system, and 129 under the cash bonus bid, sliding-scale royalty system. Department of the Interior, OCS Oil and Gas Leasing: An Annual Report on the Leasing and Production Program, Fiscal Year 1979. In fiscal year 1980, four lease sales were held, with 293 tracts leased. Of those, 136 tracts were leased under the traditional cash bonus bid, 162/3% royalty system, 120 under the cash bonus bid, sliding-scale royalty system, 23 under the cash bonus bid, fixed net profit-share system, and 14 under a cash bonus bid, fixed 331/3% royalty system. Department of the Interior, Outer Continental Shelf Oil and Gas Leasing and Production Program, Annual Report, Fiscal Year 1980. 10 479 F.Supp. 62 (DC 1979). 11 On remand to the District Court, the parties stipulated to the entry of an order requiring the Department of Energy to issue final regulations for the net profit-share bid, fixed cash bonus system and the work-commitment bid, fixed cash bonus and fixed royalty system. Brief for Petitioners 9; Brief for Respondents 5, n. 1; see also 46 Fed.Reg. 35614, 35615 (1981) (to be codified in 10 CFR §§ 376, 390). Thus, no question is now presented concerning the Secretary of Energy's duty to issue these regulations. The Court of Appeals and the respondents based their conclusion that the Secretary of Energy must issue regulations for the alternative systems on the theory that the Secretary of the Interior must use them, the issue under consideration here. 12 In their initial complaint, the individual respondents also claimed standing as taxpayers, but have not pressed that claim here. The 1978 Amendments contain a provision which permits suit by those having "a valid legal interest." § 1349(a)(1). 13 Section 1344(a)(4) states that "[l]easing activities shall be conducted to assure receipt of fair market value for the lands leased and the rights conveyed by the Federal Government." 14 See, e. g., H.R.Rep.No.95-590, pp. 47, 54 (1977); S.Rep.No.95-284, pp. 46, 73 (1977). 15 Those three are the cash bonus bid, diminishing or sliding-scale royalty system, § 1337(a)(1)(C), the cash bonus bid, fixed net profit-share system, § 1337(a)(1)(D), and the cash bonus bid, fixed royalty and fixed net profit-share system, § 1337(a)(1)(F). 16 Also included, for example, are the "economic, social, and environmental values of the renewable and nonrenewable resources contained in the outer Continental Shelf." § 1344(a)(1). In addition, the Conference Report indicates that providing a fair return to the Federal Government is only one of many considerations the Secretary of the Interior is to weigh: "The conferees intend that in utilizing the new bidding alternatives, a variety of considerations should be taken into account, including but not limited to: (i) Providing a fair return to the Federal Government; (ii) increasing competition; (iii) assuring competent and safe operations; (iv) avoiding undue speculation; (v) avoiding unnecessary delays in exploration, development, and production; (vi) discovering and recovering oil and gas; (vii) developing new oil and gas resources in an efficient and timely manner; and (viii) limiting administrative burdens on government and industry." H.R.Conf.Rep.No.95-1474, p. 92 (1978), U.S. Code Cong. & Admin. News 1978, p. 1691. The House Report reiterates the point, emphasizing that striking the proper balance among the factors is up to the Secretary of the Interior: "One purpose of [the 1978 Amendments] is to authorize alternative leasing arrangements and require experimentation with them. It will enable the Secretary of the Interior, who administers the federal leasing program, to strike a proper balance between securing a fair return to the Federal Government for the lease of its lands, increasing competition in exploitation of resources, and providing the incentive of a fair profit to the oil companies, which must risk their investment capital." H.R.Rep.No.95-590, p. 54 (1977), U.S. Code Cong. & Admin. News 1978, p. 1461. 17 Section 1337(a)(9)(D) requires the Secretary of Energy, in consultation with the Secretary of the Interior, to report to Congress "why a particular bidding system has not been or will not be utilized." Section 1343(2)(A) requires the Secretary of the Interior to report to Congress "the reasons why a particular bidding system has not been utilized." 18 The Senate Report, S.Rep.No.95-284, pp. 46-47, 73 (1977), put it this way: "S. 9 authorizes a wide variety of new bidding systems. These are designed to reduce the front end cash bonus, increase the government's return on actual production of oil or gas, make it easier for smaller companies to enter the OCS development business, and increase the availability of funds for exploration. * * * * * "In order to assure that these alternatives will be used, the bill limits the Secretary's authority to use the cash bonus-fixed royalty system which has been the historical method of OCS bidding . . . . * * * * * "The basic thrust of all these new options is to reduce the reliance on large front-end cash bonuses as the means of obtaining a fair price for the public's property. The committee wants to authorize lease allocation systems that would encourage the widest possible participation in competitive lease sales consistent with receipt by the public of fair market value for its resources. The committee believes that net profits share and other arrangements can be effective in shifting Government revenue away from initial bonuses and into deferred payments made out of a leaseholder's profits based on actual production of oil or gas." The House Report, H.Rep.No.95-590, pp. 47, 138-139 (1977), echoes the Senate's conclusions, U.S. Code Cong. & Admin. News 1978, pp. 1453, 1544-1545: "At present, the cash bonus system is used almost exclusively. Under that system, in order to win a lease, a company must have vast amounts of capital, and the price to the company is set without full knowledge of the value of the oil and gas in the area. This may reduce competition for off-shore leases to the major oil companies and reduce the public return for resources. To increase competition for off-shore leases and secure higher returns to the public Treasury, section 8 of the Outer Continental Shelf Lands Act has been amended to allow the Secretary to use other bidding methods based on net profits; royalty; or work commitments stated in dollar amounts. * * * * * "Witnesses before the committee indicated that the high front-end bonus bids may have created a barrier to the entry of small and medium-sized oil firms as well as other potential exploiters, to the OCS activity, and that these types of bids do not, after the completion of exploitation of a lease area, provide a fair return to the Government. * * * * * "[T]he 1977 amendments authorizes [sic] new bidding options. The basic thrust of all these new options is to reduce the reliance on large front-end cash bonuses as the means of obtaining a fair price for the public's property. . . . "In order to assure that these new bidding alternatives are used, the 1977 amendments limit the Secretary's authority to use the cash bonus—fixed royalty system, which has been the historical method of OCS bidding." 19 Of many possible, a single example drawn from the Conference Report, H.R.Conf.Rep.No.95-1474, p. 92 (1978), U.S. Code Cong. & Admin. News 1978, p. 1690, suffices to demonstrate this point. The Conference Report summarizes the statutory requirement in § 1337(a)(5)(B) that the Secretary of the Interior experiment with the enumerated alternative bidding systems as follows: "Bidding systems other than bonus bidding, including royalty, net profit, work commitment, and nonenumerated systems, are to be utilized in at least 20 percent and not more than 60 percent of the tracts offered for leasing in all OCS areas during each of the next 5 years." (Emphasis in original.) Plainly, the reference to "bonus bidding" is to the traditional system specified in § 1337(a)(1)(A). Otherwise, the summary is simply wrong, because three of the enumerated alternatives retain the size of a cash bonus as the bidding variable. Similar examples are found throughout the legislative history. See H.R.Rep.No.95-590, pp. 47, 138-139, 141 (1977); S.Rep.No.95-284, pp. 46-47 (1977); H.R.Conf.Rep.No.95-1474, supra, at 93.

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454 U.S. 100 102 S.Ct. 177 70 L.Ed.2d 271 FAIR ASSESSMENT IN REAL ESTATE ASSOCIATION, INC., et al., Petitionersv.Gene McNARY, et al. No. 80-427. Argued Oct. 5, 1981. Decided Dec. 1, 1981. Syllabus Held : The principle of comity bars taxpayers' damages actions brought in federal courts under 42 U.S.C. § 1983 to redress the allegedly unconstitutional administration of a state tax system. Because the principle of comity bars federal courts from granting damages relief in such cases, it is not necessary to decide whether the Tax Injunction Act, standing alone, would bar such actions. Pp. 107-117. (a) Prior to enactment in 1937 of the Tax Injunction Act which prohibits district courts from enjoining, suspending, or restraining the assessment, levy, or collection of any state tax where a plain, speedy, and efficient remedy may be had in state courts—this Court's decisions in cases seeking federal-court equitable relief against state taxation (handed down both before and after the enactment in 1871 of 42 U.S.C. § 1983's predecessor) recognized that the doctrine of equitable restraint when remedies at law are adequate was particularly applicable in suits challenging the constitutionality of state tax laws because of the delicate balance between the federal authority and state governments, and the concomitant respect that should be accorded state tax laws in federal court. Pp. 107-109. (b) The legislative history of the Tax Injunction Act does not suggest that Congress intended that federal-court deference in state tax matters be limited to the actions enumerated in the Act. Thus, the principle of comity which predated the Act was not restricted by its passage. Pp. 109-110. (c) The post-Act vitality of the comity principle is demonstrated by this Court's 1943 decision in Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407, that federal courts may not render declaratory judgments as to the constitutionality of state tax laws. Although the Act was raised as a possible bar to the suit (as it has been raised in this case), it was found to be unnecessary to determine whether the Act could be construed to prohibit declaratory relief. The decision was based instead on principles of federalism and the necessity of federal-court respect for state taxing schemes, thus demonstrating not only the post-Act vitality of the comity principle, but also its applicability to actions seeking a remedy other than injunctive relief. P.p.110-111. (d) Damages actions under § 1983 would be no less disruptive of state tax systems than actions to enjoin the collection of taxes. Recovery of damages under § 1983 would first require a determination of the unconstitutionality of the state tax scheme that would be fully as intrusive as the equitable actions that are barred by comity principles. Moreover, the intrusiveness of such § 1983 actions would be exacerbated by the doctrine of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, authorizing immediate resort to a federal court under § 1983—without first exhausting state remedies—whenever state actions allegedly infringe constitutional rights. In addition to the intrusiveness of the judgment, the very maintenance of the suit itself would intrude on the enforcement of the state scheme. Pp. 113-115. 622 F.2d 415, affirmed. David J. Newburger, St. Louis, Mo., for petitioners. Thomas W. Wehrle, Clayton, Mo., for respondents. Justice REHNQUIST delivered the opinion of the Court. 1 In this action we are required to reconcile two somewhat intermittent and conflicting lines of authority as to whether a damages action may be brought under 42 U.S.C. § 1983 to redress the allegedly unconstitutional administration of a state tax system. The United States District Court for the Eastern District of Missouri held that such suits were barred by both 28 U.S.C. § 1341 (Tax Injunction Act) and the principle of comity, and the Court of Appeals for the Eighth Circuit affirmed by an equally divided court sitting en banc.1 We granted certiorari to resolve a conflict among the Courts of Appeals,2 450 U.S. 1039, 101 S.Ct. 1755, 68 L.Ed.2d 236 and we now affirm. Before setting forth the facts, we think that a description of the past and at times divergent decisions of this Court may shed light upon the proper disposition of this case. 2 * This Court, even before the enactment of § 1983, recognized the important and sensitive nature of state tax systems and the need for federal-court restraint when deciding cases that affect such systems. As Justice Field wrote for the Court shortly before the enactment of § 1983: 3 "It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public." Dows v. Chicago, 11 Wall. 108, 110, 20 L.Ed. 65 (1871). 4 After this Court conclusively decided that federal courts may enjoin state officers from enforcing an unconstitutional state law, Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), Congress also recognized that the autonomy and fiscal stability of the States survive best when state tax systems are not subject to scrutiny in federal courts. Thus, in 1937 Congress provided: 5 "The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." 28 U.S.C. § 1341 (hereinafter § 1341 or the Act). 6 This legislation, and the decisions of this Court which preceded it, reflect the fundamental principle of comity between federal courts and state governments that is essential to "Our Federalism," particularly in the area of state taxation. See, e. g., Matthews v. Rodgers, 284 U.S. 521, 52 S.Ct. 217, 76 L.Ed. 447 (1932); Singer Sewing Machine Co. v. Benedict, 229 U.S. 481, 33 S.Ct. 942, 57 L.Ed. 1288 (1913); Boise Artesian Water Co. v. Boise City, 213 U.S. 276, 29 S.Ct. 426, 53 L.Ed. 796 (1909). Even after enactment of § 1341 it was upon this comity that we relied in holding that federal courts, in exercising the discretion that attends requests for equitable relief, may not even render declaratory judgments as to the constitutionality of state tax laws. Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943). 7 Contrasted with this statute and line of cases are our holdings with respect to 42 U.S.C. § 1983. In 1871, shortly after Justice Field wrote of the vital and vulnerable nature of state tax systems, Congress enacted § 1983 with its familiar language: 8 "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 Obviously § 1983 cut a broad swath. By its terms it gave a federal cause of action to prisoners, taxpayers, or anyone else who was able to prove that his constitutional or federal rights had been denied by any State. In addition, the statute made no mention of any requirement that state remedies be exhausted before resort to the federal courts could be had under 28 U.S.C. § 1343.3 The combined effect of this newly created federal cause of action and the absence of an express exhaustion requirement was not immediately realized. It was not until our decision in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that § 1983 was held to authorize immediate resort to a federal court whenever state actions allegedly infringed constitutional rights: 10 "Although the legislation was enacted because of the conditions that existed in the South at that time, it is cast in general language and is as applicable to Illinois as it is to the States whose names were mentioned over and again in the debates. It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked." 365 U.S., at 183, 81 S.Ct., at 482. 11 The immediacy of federal relief under § 1983 was reemphasized in McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), where the Court stated: "It is immaterial whether [the state official's] conduct is legal or illegal as a matter of state law. Such claims are entitled to be adjudicated in the federal courts." Id., at 674, 83 S.Ct., at 1437 (citation and footnote omitted). And in the unargued per curiam opinion of Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971), the Court concluded that "[p]etitioners were . . . entitled to have their actions treated as claims for relief under the Civil Rights Acts, not subject . . . to exhaustion requirements." Id., at 251, 92 S.Ct., at 409. See also Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); Houghton v. Shafer, 392 U.S. 639, 640, 88 S.Ct. 2119, 2120, 20 L.Ed.2d 1319 (1968); Steffel v. Thompson, 415 U.S. 452, 472-473, 94 S.Ct. 1209, 1222-1223, 39 L.Ed.2d 505 (1974). 12 Thus, we have two divergent lines of authority respecting access to federal courts for adjudication of the constitutionality of state laws. Both cannot govern this case. On one hand, § 1341, with its antecedent basis in the comity principle of Matthews v. Rodgers, supra, and Boise Artesian Water Co. v. Boise City, supra, bars at least federal injunctive challenges to state tax laws. Added to this authority is our decision in Great Lakes Dredge & Dock Co. v. Huffman, supra, holding that declaratory judgments are barred on the basis of comity. On the other hand is the doctrine originating in Monroe v. Pape, supra, that comity does not apply where § 1983 is involved, and that a litigant challenging the constitutionality of any state action may proceed directly to federal court. With this divergence of views in mind, we turn now to the facts of this case, a § 1983 challenge to the administration of state tax laws which implicates both lines of authority. We hold that at least as to such actions, which is all we need decide here, the principle of comity controls. II 13 Petitioner Fair Assessment in Real Estate Association is a nonprofit corporation formed by taxpayers in St. Louis County (County) to promote equitable enforcement of property tax laws in Missouri. Petitioners J. David and Lynn F. Cassilly own real property with recent improvements in the County. Petitioners filed suit under § 1983 alleging that respondents, the County's Tax Assessors, Supervisors, and Director of Revenue, and three members of the Missouri State Tax Commission, had deprived them of equal protection and due process of law by unequal taxation of real property. 14 The complaint focuses on two specific practices by respondents. First, petitioners allege that County properties with new improvements are assessed at approximately 331/3% of their current market value, while properties without new improvements are assessed at approximately 22% of their current market value. This disparity allegedly results from respondents' failure to reassess old property on a regular basis, the last general reassessment having occurred in 1960. Second, petitioners allege that property owners who successfully appeal their property assessments, as did the Cassillys in 1977, are specifically targeted for reassessment the next year. 15 Petitioners have previously sought some relief from respondents' assessments in state proceedings. In 1975, petitioner David Cassilly and others brought an action in which the State Circuit Court ordered respondent Antonio to reassess all real property in the County. On direct appeal, however, the Missouri Supreme Court reversed on the ground that the State Tax Commission, not the Circuit Court, should supervise the reassessment process. State ex rel. Cassilly v. Riney, 576 S.W.2d 325 (1979) (en banc). In 1977, the Cassillys appealed the tax assessed on their home to the County Board of Equalization and received a reduction in assessed value from 331/3% to 29%. When their home was again assessed at 331/3% in 1978, the Cassillys once more appealed to the Board of Equalization. That appeal was pending at the commencement of this litigation. 16 The Cassillys brought this § 1983 action in federal court seeking actual damages in the amount of overassessments from 1975 to 1979, and punitive damages of $75,000 from each respondent. Petitioner Fair Assessment sought actual damages in the amount of expenses incurred in efforts to obtain equitable property assessments for its members. As in all other § 1983 actions, the award of such damages would first require a federal-court declaration that respondents, in administering the state tax, violated petitioners' constitutional rights. III 17 As indicated by our discussion in Part I, § 1341 and our comity cases have thus far barred federal courts from granting injunctive and declaratory relief in state tax cases. Because we decide today that the principle of comity bars federal courts from granting damages relief in such cases, we do not decide whether that Act, standing alone, would require such a result.4 The correctness of the result in this case is demonstrated by an examination of the pre-Act decisions of this Court, the legislative history of the Act, our post-Act decision in the Great Lakes case, and more recent recognition of the principles of federalism. 18 Prior to enactment of § 1341, virtually all federal cases challenging state taxation sought equitable relief.5 Consequently, federal-court restraint in state tax matters was based upon the traditional doctrine that courts of equity will stay their hand when remedies at law are plain, adequate, and complete. See, e. g., Matthews v. Rodgers, 284 U.S. 521, 52 S.Ct. 217, 76 L.Ed. 447 (1932); Singer Sewing Machine Co. v. Benedict, 229 U.S. 481, 33 S.Ct. 942, 57 L.Ed. 1288 (1913); Boise Artesian Water Co. v. Boise City, 213 U.S. 276, 29 S.Ct. 426, 53 L.Ed. 796 (1909). Even with this basis in equity law, these cases recognized that the doctrine of equitable restraint was of "notable application," Boise Artesian Water Co., supra, at 281, and carried "peculiar force," Matthews, supra, 284 U.S., at 525, 52 S.Ct., at 219, in suits challenging the constitutionality of state tax laws. Such restraint was particularly appropriate because of the delicate balance between the federal authority and state governments, and the concomitant respect that should be accorded state tax laws in federal court. As the Court in Matthews explained: 19 "The reason for this guiding principle [of equitable restraint] is of peculiar force in cases where the suit, like the present one, is brought to enjoin the collection of a state tax in courts of a different, though paramount sovereignty. The scrupulous regard for the rightful independence of state governments which should at all times actuate the federal courts, and a proper reluctance to interfere by injunction with their fiscal operations, require that such relief should be denied in every case where the asserted federal right may be preserved without it." 284 U.S., at 525,6 52 S.Ct., at 219. 20 Thus, in 1909 we could state that "[a]n examination of the decisions of this court shows that a proper reluctance to interfere by prevention with the fiscal operations of the state governments has caused it to refrain from so doing in all cases where the Federal rights of the persons could otherwise be preserved unimpaired." Boise Artesian Water Co., supra, 213 U.S., at 282, 29 S.Ct., at 428. B 21 This policy of equitable restraint based on notions of comity did not completely clear the federal courts of state tax cases. Indeed, the Senate Report on the bill that was to become § 1341 referred to "[t]he existing practice of the Federal courts in entertaining tax-injunction suits against State officers . . . ." S.Rep.No.1035, 75th Cong., 1st Sess., 2 (1937). An examination of the cases of that era demonstrates, however, that this practice resulted not from a repudiation of the principle of comity, but from federal-court determinations that available state remedies did not adequately protect the federal rights asserted. See, e. g., Grosjean v. American Press Co., 297 U.S. 233, 242, 56 S.Ct. 444, 445, 80 L.Ed. 660 (1936); Gully v. Interstate Natural Gas Co., 82 F.2d 145 (CA 5), cert. denied, 298 U.S. 688, 56 S.Ct. 958, 80 L.Ed. 1407 (1936). See also Note, Federal Court Interference with the Assessment and Collection of State Taxes, 59 Harv.L.Rev. 780, 783, n. 13 (1946); Note, The Tax Injunction Act and Suits for Monetary Relief, 46 U.Chi.L.Rev. 736, 744, and nn. 40, 41 (1979). 22 Congress' response to this practice of the federal courts enactment of § 1341—was motivated in large part by comity concerns. As we said of the Act just last Term: 23 "The statute 'has its roots in equity practice, in principles of federalism, and in recognition of the imperative need of a State to administer its own fiscal operations.' Tully v. Griffin, Inc., 429 U.S. [68,] 73 [97 S.Ct. 219, 222, 50 L.Ed.2d 227 (1976)]. This last consideration was the principal motivating force behind the Act: this legislation was first and foremost a vehicle to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes. 81 Cong.Rec. 1415 (1937) (remarks of Sen. Bone) . . . ." Rosewell v. LaSalle National Bank, 450 U.S. 503, 522, 101 S.Ct. 1221, 1233, 67 L.Ed.2d 464 (1981) (footnote omitted). 24 Neither the legislative history of the Act nor that of its precursor, 28 U.S.C. § 1342, suggests that Congress intended that federal-court deference in state tax matters be limited to the actions enumerated in those sections. See H.R.Rep.No. 1503, 75th Cong., 1st Sess., 1 (1937); 81 Cong.Rec. 1415 (1937) (remarks of Sen. Bone). Thus, the principle of comity which predated the Act was not restricted by its passage. C 25 The post-Act vitality of the comity principle is perhaps best demonstrated by our decision in Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943). Several Louisiana taxpayers brought an action in Federal District Court seeking a declaratory judgment that the state tax law as applied to them was unconstitutional and void. Although § 1341 was raised as a possible bar to the suit, as it has been raised in this case, "we [found] it unnecessary to inquire whether the words of the statute may be so construed as to prohibit a declaration by federal courts concerning the invalidity of a state tax." 319 U.S., at 299, 63 S.Ct., at 1073. Instead, "we [were] of the opinion that those considerations which have led federal courts of equity to refuse to enjoin the collection of state taxes, save in exceptional cases, require[d] a like restraint in the use of the declaratory judgment procedure." Ibid. Those considerations were, of course, principles of federalism: 26 " 'The scrupulous regard for the rightful independence of state governments which should at all times actuate the federal courts, and a proper reluctance to interfere by injunction with their fiscal operations, require that such relief should be denied in every case where the asserted federal right may be preserved without it.' . . . Interference with state internal economy and administration is inseparable from assaults in the federal courts on the validity of state taxation, and necessarily attends injunctions, interlocutory or final, restraining collection of state taxes. These are the considerations of moment which have persuaded federal courts of equity to deny relief to the taxpayer . . . ." Id., at 298, 63 S.Ct., at 1073 (quoting Matthews v. Rodgers, 284 U.S., at 525, 52 S.Ct., at 219). 27 The Court's reliance in Great Lakes upon the necessity of federal-court respect for state taxing schemes demonstrates not only the post-Act vitality of the comity principle, but also its applicability to actions seeking a remedy other than injunctive relief. The focus was not on the specific form of relief requested, but on the fact that "in every practical sense [it] operate[d] to suspend collection of the state taxes until the litigation [was] ended." 319 U.S., at 299, 63 S.Ct., at 1073. As will be seen below, the relief sought in this case would have a similarly disruptive effect. D 28 The principle of comity has been recognized and relied upon by this Court in several recent cases dealing with matters other than state taxes. Its fullest articulation was given in the now familiar language of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), a case in which we held that traditional principles of equitable restraint bar federal courts from enjoining pending state criminal prosecutions except under extraordinary circumstances: 29 "Th[e] underlying reason for restraining courts of equity from interfering with criminal prosecutions is reinforced by an even more vital consideration, the notion of 'comity,' that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in separate ways. . . . [T]he concept [represents] a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. It should never be forgotten that this slogan, 'Our Federalism,' born in the early struggling days of our Union of States, occupies a highly important place in our Nation's history and its future." Id., at 44-45, 91 S.Ct., at 750-751. 30 The principles of federalism recognized in Younger have not been limited to federal-court interference in state criminal proceedings, but have been extended to some state civil actions. E. g., Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). Although these modern expressions of comity have been limited in their application to federal cases which seek to enjoin state judicial proceedings, a limitation which we do not abandon here, they illustrate the principles that bar petitioners' suit under § 1983. As we said in Rosewell, supra, "the reasons supporting federal noninterference [with state taxation] are just as compelling today as they were in 1937." 450 U.S., at 527, 101 S.Ct., at 1225. As will be seen in the next part, petitioners' § 1983 action would be no less disruptive of Missouri's tax system than would the historic equitable efforts to enjoin the collection of taxes, efforts which were early held barred by considerations of comity. IV 31 In arguments primarily addressed to the applicability of the Act, petitioners contend that damages actions are inherently less disruptive of state tax systems than injunctions or declaratory judgments, and therefore should not be barred by prior decisions of this Court. Petitioners emphasize that their § 1983 claim seeks recovery from individual state officers, not from state coffers, and that the doctrine of qualified immunity will protect such officers' good-faith actions and will thus avoid chilling their administration of the Missouri tax scheme. 32 We disagree. Petitioners will not recover damages under § 1983 unless a district court first determines that respondents' administration of the County tax system violated petitioners' constitutional rights. In effect, the district court must first enter a declaratory judgment like that barred in Great Lakes. We are convinced that such a determination would be fully as intrusive as the equitable actions that are barred by principles of comity.7 Moreover, the intrusiveness of such § 1983 actions would be exacerbated by the nonexhaustion doctrine of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Taxpayers such as petitioners would be able to invoke federal judgments without first permitting the State to rectify any alleged impropriety. 33 In addition to the intrusiveness of the judgment, the very maintenance of the suit itself would intrude on the enforcement of the state scheme. As the District Court in this case stated: 34 "To allow such suits would cause disruption of the states' revenue collection systems equal to that caused by anticipatory relief. State tax collection officials could be summoned into federal court to defend their assessments against claims for refunds as well as prayers for punitive damages, merely on the assertion that the tax collected was willfully and maliciously discriminatory against a certain type of property. Allowance of such claims would result in this Court being a source of appellate review of all state property tax classifications." 478 F.Supp. 1231, 1233-1234 (1979). 35 This intrusion, although undoubtedly present in every § 1983 claim, is particularly highlighted by the facts of this case. Defendants are not one or two isolated administrators, but virtually every key tax official in St. Louis County. They include the County executive, the Director of Revenue, the Tax Assessor, and three supervising members of the State Tax Commission. In addition, the actions challenged in the complaint unequal assessment of new and old property and retaliatory assessment of property belonging to those who successfully appeal to the Board of Equalization—may well be the result of policies or practicalities beyond the control of any individual officer. For example, failure annually to reassess old property may well result from a practical allocation of limited resources. In addition, according to respondents' attorney at oral argument, Missouri law requires that all property, including property which belongs to those who successfully appeal to the Board of Equalization, be assessed at 331/3% of market value. Thus, a judicial determination of official liability for the acts complained of, even though necessarily based upon a finding of bad faith, would have an undeniable chilling effect upon the actions of all County officers governed by the same practicalities or required to implement the same policies. There is little doubt that such officials, faced with the prospect of personal liability to numerous taxpayers, not to mention the assessment of attorney's fees under 42 U.S.C. § 1988, would promptly cease the conduct found to have infringed petitioners' constitutional rights, whether or not those officials were acting in good faith. In short, petitioner's action would "in every practical sense operate to suspend collection of the state taxes . . .," Great Lakes, 319 U.S., at 299, 63 S.Ct., at 1073, a form of federal-court interference previously rejected by this Court on principles of federalism. V 36 This case is therefore controlled by principles articulated even before enactment of § 1983 and followed in later decisions such as Matthews and Great Lakes. The recovery of damages under the Civil Rights Act first requires a "declaration" or determination of the unconstitutionality of a state tax scheme that would halt its operation. And damages actions, no less than actions for an injunction, would hale state officers into federal court every time a taxpayer alleged the requisite elements of a § 1983 claim. We consider such interference to be contrary to "[t]he scrupulous regard for the rightful independence of state governments which should at all times actuate the federal courts." Matthews, 284 U.S., at 525, 52 S.Ct., at 219. 37 Therefore, despite the ready access to federal courts provided by Monroe and its progeny, we hold that taxpayers are barred by the principle of comity from asserting § 1983 actions against the validity of state tax systems in federal courts. Such taxpayers must seek protection of their federal rights by state remedies, provided of course that those remedies are plain, adequate, and complete,8 and may ultimately seek review of the state decisions in this Court. See Huffman v. Pursue, Inc., 420 U.S., at 605, 95 S.Ct., at 1208-1209; Matthews v. Rodgers, supra, 284 U.S., at 526, 52 S.Ct., at 220. 38 The adequacy of available Missouri remedies is not at issue in this case. The District Court expressly found "that [petitioners] have means to rectify what they consider an unjust situation through the state's own processes," 478 F.Supp., at 1234, and petitioners do not contest this finding. In addition, the Missouri Supreme Court has expressly held that plaintiffs such as petitioners may assert a § 1983 claim in state court. See, e. g., Stafford v. Muster, 582 S.W.2d 670, 681 (1979); Shapiro v. Columbia Union National Bank & Trust Co., 576 S.W.2d 310 (1978). 39 Accordingly, the judgment of the Court of Appeals is 40 Affirmed. 41 Justice BRENNAN, with whom Justice MARSHALL, Justice STEVENS, and Justice O'CONNOR join, concurring in the judgment. 42 I agree that the judgment of the District Court dismissing petitioners' complaint should be affirmed. But I arrive at that conclusion by a different route for I cannot agree that this case, and the jurisdiction of the federal courts over an action for damages brought pursuant to express congressional authority, is to be governed by applying a "principle of comity" grounded solely on this Court's notion of an appropriate division of responsibility between the federal and state judicial systems. Subject only to constitutional constraints, it is exclusively Congress' responsibility to determine the jurisdiction of the federal courts. Federal courts have historically acted within their assigned jurisdiction in accordance with established principles respecting the prudent exercise of equitable power. But this practice lends no credence to the authority which the Court asserts today to renounce jurisdiction over an entire class of damages actions brought pursuant to 42 U.S.C. § 1983. 43 * Petitioners J. David Cassilly and Lynn F. Cassilly are owners of of real property in St. Louis County, Mo. Petitioner Fair Assessment in Real Estate Association, Inc. (FAIR), is a not-for-profit corporation formed by real estate taxpayers in St. Louis County to promote equitable enforcement of the real property tax laws of the State of Missouri. Respondents are public officials responsible for the execution of the real property tax laws in St. Louis County. On July 2, 1979, petitioners filed this action in the United States District Court for the Eastern District of Missouri, pursuant to 42 U.S.C. § 1983, contending that respondents had willfully, intentionally, and systematically deprived them of their rights to due process and equal protection under the Fourteenth Amendment through inequitable property tax assessments. Petitioners alleged that respondents assessed properties with recent improvements at roughly 331/3% of current true market value, and older homes on the average of 221/2% of current market value. Further they alleged that respondents targeted for reassessment all real property upon which a successful appeal had been prosecuted in the prior year. The Cassillys sought compensatory damages measured by the difference between the taxes which they paid in several years prior to the action, and the amount they contended would have been owing had they been assessed at the average rate. They sought further compensation for expenses they had incurred in their sporadic attempts to remedy the alleged unlawful assessment by resort to the state administrative mechanisms, and substantial punitive damages against each respondent. FAIR sought money damages in the amount of expenses incurred in the course of its efforts to obtain equitable enforcement of the state real property tax law. 44 The District Court dismissed the complaint, holding that the action was barred by the Tax Injunction Act and principles of comity.1 478 F.Supp. 1231. The judgment of the District Court was affirmed by an equally divided vote of the Court of Appeals for the Eighth Circuit sitting en banc. 622 F.2d 415. II 45 The opinion for the Court sets the "principle of comity" against the strong policies of 42 U.S.C. § 1983 favoring a federal forum to vindicate deprivations of federal rights, and resolves the issue in favor of comity. In my view, there is no conflict here that could conceivably justify the unprecedented step of renouncing our assigned jurisdiction. Indeed the very cases relied on by the Court in its attempt to find some historic source for its sweeping view of the "principle of comity," reveal the limits of that principle as a source of judicial authority. 46 As employed by the Court in several recent opinions, and in the opinion of the Court today, the "principle of comity" refers to the "proper respect for state functions" that organs of the National Government, most particularly the federal courts, are expected to demonstrate in the exercise of their own legitimate powers. See Younger v. Harris, 401 U.S. 37, 44-45, 91 S.Ct. 746, 750-751, 27 L.Ed.2d 669 (1971). So employed, the "principle of comity" is nothing more than an encapsulation of policy, albeit policy with roots in the Constitution and our federal system of government.2 47 While the "principle of comity" may be a source of judicial policy, it is emphatically no source of judicial power to renounce jurisdiction.3 The application of the comity principle has thus been limited to a relatively narrow class of cases: Only where a federal court is asked to employ its historic powers as a court of equity, and is called upon to decide whether to exercise the broadest and potentially most intrusive form of judicial authority, does "comity" have an established and substantial role in informing the exercise of the court's discretion.4 There is little room for the "principle of comity" in actions at law where, apart from matters of administration, judicial discretion is at a minimum.5 Surely no judicial power to fashion novel doctrine concerning the jurisdiction of the federal courts is to be found in the Constitution itself, which provides that the judicial power "shall be vested in one supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish." U.S.Const., Art. III, § 1. 48 The Court relies primarily on Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943), to support its sweeping view of the comity principle. Great Lakes presented the question whether the Tax Injunction Act could be "so construed as to prohibit a declaration by federal courts concerning the invalidity of a state tax." Id., at 299, 63 S.Ct., at 1073. We found no need to address that question, holding instead that "those considerations which have led federal courts of equity to refuse to enjoin the collection of state taxes, save in exceptional cases, require a like restraint in the use of the declaratory judgment procedure." Ibid. From this the Court today reasons: 49 "Petitioners will not recover damages under § 1983 unless a district court first determines that respondents' administration of the County tax system violated petitioners' constitutional rights. In effect, the district court must first enter a declaratory judgment like that barred in Great Lakes. We are convinced that such a determination would be fully as intrusive as the equitable actions that are barred by principles of comity." Ante, at 113. 50 Great Lakes does not support this reasoning. Our opinion there suggests nothing intrusive in bringing a claim involving a question of state taxation to a federal forum. Dismissal of the suit was permissible only because the claim for declaratory relief was designed to gain "an adjudication of rights in anticipation of their threatened infringement."6 Such a suit, precisely like one for an injunction, would "in every practical respect operate to suspend collection of the state taxes until the litigation is ended."7 319 U.S., at 299, 63 S.Ct., at 1073. No similar concern is raised by the present case.8 51 The jurisdiction of the federal courts over cases such as the present one reflects a considered congressional judgment. As the Court acknowledges, § 1983 "gave a federal cause of action to prisoners, taxpayers, or anyone else who was able to prove that his constitutional or federal rights had been denied by any State." Ante, at 103-104. In addition, 42 U.S.C. § 1981 provides that "[a]ll persons . . . shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."9 (Emphasis added.) Congress has expressly provided jurisdiction over such claims in the district courts.10 28 U.S.C. § 1343; see Zwickler v. Koota, 389 U.S. 241, 245-248, 88 S.Ct. 391, 393-395, 19 L.Ed.2d 444 (1967).11 Where Congress has granted the federal courts jurisdiction, we are not free to repudiate that authority. Id.;12 England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). In England we said: "There are fundamental objections to any conclusion that a litigant who has properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims can be compelled, without his consent and through no fault of his own, to accept instead a state court's determination of those claims. Such a result would be at war with the unqualified terms in which Congress, pursuant to constitutional authorization, has conferred special categories of jurisdiction upon the federal courts, and with the principle that 'When a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction . . . . The right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied.' Willcox v. Consolidated Gas Co., 212 U.S. 19, 40 [29 S.Ct. 192, 195, 53 L.Ed. 382]." Id., at 415, 84 S.Ct., at 464-465 (footnote omitted). 52 The power to control the jurisdiction of the lower federal courts is assigned by the Constitution to Congress, not to this Court. In its haste to rid the federal courts of a class of cases that it thinks unfit for federal scrutiny, the Court today departs from this fundamental precept. III 53 Subject of course to constitutional constraints, the jurisdiction of the lower federal courts is subject to the plenary control of Congress. Kline v. Burke Construction Co., 260 U.S. 226, 233-234, 43 S.Ct. 79, 82-83, 67 L.Ed. 226 (1922); Cary v. Curtis, 3 How. 236, 245, 11 L.Ed. 576 (1845). As pointed out supra, at 123-124, and n. 11, this case appears to fall squarely within the jurisdictional grant of 28 U.S.C. § 1343, and perhaps of 28 U.S.C. § 1331 as well. The question, then, is whether Congress has anywhere contradicted that presumptive grant of judicial authority. Only one possible source of that contradiction having been suggested, I begin my analysis of the jurisdictional question with the Tax Injunction Act itself. A. 54 Title 28 U.S.C. § 1341 of the United States Code provides: 55 "The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." 56 If a suit brought under § 1983 for damages is to come within the prohibition of the Act, it would seem necessary to demonstrate that such a suit is one to "enjoin, suspend or restrain the assessment, levy or collection" of a state tax. Respondents argue that the terms "suspend" and "restrain" are words of ordinary usage, and that they are sufficiently broad to bring the present suit for damages, which respondents assert will "chill" state tax collection, within the proscriptions of the Act. In my view, the legislative history of the Act, and the case law background against which it was written, directly refute the suggestion that Congress intended those words to have the encompassing meaning respondents suggest.13 B 57 The federal courts have for most of their history been scrupulous in the exercise of their equitable powers to avoid unnecessary interference with the administration of state taxation. In Dows v. Chicago, 11 Wall. 108, 20 L.Ed. 65 (1871), Justice Field noted: "It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public." Id., at 110. 58 Thus it was early held that the illegality or unconstitutionality of a state or municipal tax would not in itself provide the foundation for equitable relief in the federal courts. Id., at 109; see Boise Artesian Water Co. v. Boise City, 213 U.S. 276, 282-285, 29 S.Ct. 426, 428-429, 53 L.Ed. 796 (1909).14 Consistent with equity practice, the federal courts would not enjoin the collection of state taxes, despite the possible unconstitutionality of the exaction, where there existed a "plain, adequate and complete remedy at law." Singer Sewing Machine Co. v. Benedict, 229 U.S. 481, 488, 33 S.Ct. 942, 944, 57 L.Ed. 1288 (1913). 59 Although this Court, in the many cases preceding passage of the Tax Injunction Act, affirmed the need for restraint in the exercise of the power of equity in state tax cases, it never intimated that the federal forum was inappropriate where the complaint sought only a remedy in damages, and the case was otherwise within federal jurisdiction. Indeed, the Court repeatedly stated the contrary. See id., at 486, 33 S.Ct., at 943; Henrietta Mills v. Rutherford County, 281 U.S. 121, 127, 50 S.Ct. 270, 272, 74 L.Ed. 737 (1930); Chicago, B. & Q. R. Co. v. Osborne, 265 U.S. 14, 16, 44 S.Ct. 431, 68 L.Ed. 878 (1924). For example, in Henrietta Mills, a unanimous Court concluded that there was no basis for equitable relief, relying on the fact that there would have been "an adequate remedy at law, not only in the state court, but also in the Federal court if petitioner had been able to show a violation of the Federal Constitution." 281 U.S., at 127, 50 S.Ct., at 272 (emphasis added). And indeed damages actions for wrongful collection of taxes, brought against both the taxing authority and the taxing officials, were not unknown to the lower federal courts. See, e. g., Tyler v. Dane County, 289 F. 843 (WD Wis. 1923); International Paper Co. v. Burrill, 260 F. 664 (Mass.1919). In Matthews v. Rodgers, 284 U.S. 521, 52 S.Ct. 217, 76 L.Ed. 447 (1932), only five years prior to the enactment of the Tax Injunction Act, we summarized the federal practice: 60 "Whenever the question has been presented, this Court has uniformly held that the mere illegality or unconstitutionality of a state or municipal tax is not in itself a ground for equitable relief in the courts of the United States. If the remedy at law is plain, adequate, and complete, the aggrieved party is left to that remedy in the state courts, . . . or to his suit at law in the federal courts if the essential elements of federal jurisdiction are present." Id., at 525-526, 52 S.Ct., at 219-220 (citations omitted; emphasis added). 61 In sum, while the federal courts, prior to the passage of the Tax Injunction Act, would frequently refrain from exercising their equitable powers in state tax cases, damages actions were an established fixture of federal jurisdiction. C 62 Although in 1932 Matthews v. Rodgers stated a broad principle of restraint in the exercise of federal equity powers, ibid., the rule was soon honored more in breach than in observance. Purporting to construe these equitable principles in state tax cases, the federal courts had become "free and easy with injunctions."15 Thus federal remedial practice began to contrast sharply with the limits on state remedial authority, with the result that the federal court became the preferred forum for those who could properly invoke its jurisdiction: principally large out-of-state corporations. The legislative history of the Tax Injunction Act makes plain Congress' concern with this disparity, and its effect on local finances. In introducing the bill that ultimately became the Tax Injunction Act, Senator Bone explained: 63 "The existing practice of the Federal courts to entertain tax-injunction suits make[s] it possible for foreign corporations [exercising the diversity jurisdiction] to withhold from a State and its governmental subdivisions taxes in such vast amounts and for such long periods as to disrupt State and county finances, and thus make it possible for such corporations to determine for themselves the amount of taxes they will pay." 81 Cong.Rec. 1416 (1937). 64 The Senate Report highlighted the nature of the problem being addressed: 65 "[U]njust discrimination between citizens of the State and foreign corporations doing business in such State has been the cause of much controversy. The controversies arising out of the use of the injunctive process in State tax cases would be eliminated by the passage of this bill." S.Rep.No.1035, 75th Cong., 1st Sess., 2 (1937) (emphasis added).16 66 Not only does the legislative focus belie respondents' suggestion that Congress believed the federal courts not competent to handle matters involving state taxation, but the legislative history addresses directly respondents' principal contention, that Congress intended the phrase "enjoin, suspend or restrain" to bar actions for monetary relief from the federal courts. The Report of the House Judiciary Committee appends a "Legal Brief" submitted to the Committee with respect to the proposed bill, which states: 67 "You ask for some assistance on the question of whether the existence of an adequate remedy at law or in equity in the State courts, such as a tax-refund action, would prevent a foreign corporation pursuing the same remedy in the Federal court. In answer, [sic] will say that there might be circumstances under which the Federal courts would have no jurisdiction of such actions; for instance, where the refund action could be brought only against the State, or against the State officers under such circumstances as to amount to a suit against the State. Under the eleventh amendment to the Federal Constitution, of course, suits against the State, or suits which are in effect suits against the State, are not maintainable in the Federal courts. 68 "But if the refund action is permitted by State legislation or rules of decision against counties or county officers, and the money refunded has not yet reached the State exchequer, such actions, if maintainable in the State courts, could likewise be pursued in the Federal courts if the requisite elements of Federal jurisdiction existed." H.R.Rep.No.1503, 75th Cong., 1st Sess., 2-3 (1937).17 69 The conclusion is thus inescapable that Congress did not intend to bar actions such as this one from the federal courts. On the contrary, Congress clearly intended that the federal forum would continue to remain available in state tax cases for monetary relief despite passage of the Tax Injunction Act. D 70 As understood and applied by this Court prior to the passage of the Tax Injunction Act,18 and by Congress in enacting the Tax Injunction Act, the "principle of comity" which demanded respect for state tax administration, extended precisely as far as was necessary to ensure that the federal courts not become party to the abuse of their equity power. Congress intended that federal authority be exercised with the same restraint that the States applied in the administration of their own tax system, and thus to restore the parity between the two judicial systems. But there is absolutely no support in either the cases of this Court, or in Congress' action, for total abdication of federal power in this field. It is thus entirely clear that as a jurisdictional matter, the federal courts have jurisdiction over claims seeking monetary relief arising from unconstitutional state taxation. IV 71 Petitioners argue that since their federal claim is brought pursuant to 42 U.S.C. § 1983, it was not necessary to exhaust administrative remedies before commencing this action. 72 In First National Bank of Greeley v. Board of Commissioners of Weld County, 264 U.S. 450, 44 S.Ct. 385, 68 L.Ed. 784 (1924), we held that before a litigant complaining of alleged overassessment of taxes may bring a damages action grounded on the Constitution or statutes of the United States, that litigant must fully exhaust any administrative remedies afforded by the State.19 In Weld County, plaintiff in error brought its action under federal question jurisdiction to recover the amount of taxes levied for the years 1913 and 1914. It alleged that the taxes were assessed and collected in contravention of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and a federal statute20 setting forth certain limitations on state and local taxation in regard to national banks.21 The Court paused before addressing plaintiff in error's substantive claim: 73 "We are met at the threshold of our consideration of the case with the contention that the plaintiff did not exhaust its remedies before the administrative boards and consequently cannot be heard by a judicial tribunal to assert the invalidity of the tax." Id., at 453, 44 S.Ct., at 386. 74 Because the plaintiff in error had not exhausted its state administrative remedies, the Court declined to consider the "question whether the tax [was] vulnerable to the challenge in respect of its validity upon any or all of the grounds set forth. . . ."22 Id., at 456, 44 S.Ct. at 387. 75 Although the Court did not elaborate on the underpinnings of that holding, it seems clear that it was grounded on the considerations of sound judicial administration23 and parity between the state and federal judicial systems that had historically guided the federal equity courts and were later embodied in the Tax Injunction Act. Those principles, and Weld County, govern the treatment of actions at law involving state tax matters. 76 Petitioners seek to avoid the reach of Weld County by arguing that this case is to be controlled by the general rule stated in McNeese v. Board of Education, 373 U.S. 668, 82 S.Ct. 1433, 10 L.Ed.2d 622 (1963), that in cases brought pursuant to 42 U.S.C. § 1983, resort to state administrative remedies is not a precondition to federal suit. As a factual matter of course, it is difficult to distinguish Weld County, which raised factual allegations that closely parallel those of the complaint at issue here.24 77 More importantly, while this Court has repeatedly reaffirmed that exhaustion of administrative remedies is not a precondition to a suit brought under the Civil Rights Acts, see, e. g., Ellis v. Dyson, 421 U.S. 426, 432-433, 95 S.Ct. 1691, 1694-1695, 44 L.Ed.2d 274 (1975); Steffel v. Thompson, 415 U.S. 452, 472-473, 94 S.Ct. 1209, 1222-1223, 39 L.Ed.2d 505 (1974); Carter v. Stanton, 405 U.S. 669, 670-671, 92 S.Ct. 1232, 1233-1234, 31 L.Ed.2d 569 (1972); Wilwording v. Swenson, 404 U.S. 249, 251, 92 S.Ct. 407, 409, 30 L.Ed.2d 418 (1971) (per curiam); King v. Smith, 392 U.S. 309, 312, n. 4, 88 S.Ct. 2128, 2131, n. 4, 20 L.Ed.2d 1118 (1968); Damico v. California, 389 U.S. 416, 416-417, 88 S.Ct. 526, 526-527, 19 L.Ed.2d 647 (1967) (per curiam), that conclusion rests firmly on the understanding that such was the intention of Congress in enacting § 1983. Where Congress has provided that in a particular class of cases the federal courts should refrain from hearing suits brought under § 1983 until administrative remedies have been exhausted, see, e. g., 42 U.S.C. § 1997e (1976 ed., Supp.IV), there is no doubt that the federal courts are bound by that limitation. Cf. Preiser v. Rodriguez, 411 U.S. 475, 489-490, 93 S.Ct. 1827, 1836-1837, 36 L.Ed.2d 439 (1973). My view has always been that displacement of § 1983 remedies can only "be justified by a clear statement of congressional intent, or, at the very least, by the presence of the most persuasive considerations of policy."25 Id., at 518, 93 S.Ct., at 1850 (BRENNAN, J., dissenting). Surely a somewhat lesser showing is required where, as here, we are concerned not with the displacement of the § 1983 remedy, but with the deferral of federal court consideration pending exhaustion of the state administrative process. Where the obligation to require exhaustion of administrative remedies may be fairly understood from congressional action, or is in accord with congressional policy, not only is § 1983 no bar, but the federal courts should be alert to further those policies. 78 We plainly have sufficient evidence of such congressional policy here. As noted above, in enacting the Tax Injunction Act, Congress sought to assure that the federal courts would remain open to suits for monetary relief in state tax cases "if the requisite elements of Federal jurisdiction existed." H.R.Rep. No. 1503, 75th Cong., 1st Sess., 3 (1937).26 In 1937 the requirement of exhaustion of state administrative remedies was certainly a mandatory precondition to suit, and in that sense a "jurisdictional prerequisite." Nevertheless, we need not reach the conclusion that Congress intended by enactment of the Tax Injunction Act to freeze the then-operative jurisdictional practice of the federal courts in order to recognize that the administrative-exhaustion requirement is entirely consonant with the principal purposes of the Act: to provide assurance that federal courts exercise at least the same restraint in dealing with questions of state tax administration as the courts of the State that levied the tax. Where administrative remedies are a precondition to suit for monetary relief in state court, absent some substantial consideration compelling a contrary result in a particular case, those remedies should be deemed a precondition to suit in federal court as well.27 V 79 Petitioners sought damages arising from what they alleged to be unconstitutional assessments in four tax years. In 1974 and 1975, they failed to pursue in any manner the administrative remedies provided by the State. In 1977 they appealed their assessment to the St. Louis County Board of Equalization and gained substantial relief. Although they claim here that the relief granted by the Board of Equalization failed to bring their assessment up to constitutional standards, they failed to appeal the Board's ruling for that year to the State Tax Commission. An appeal of their 1978 assessment was pending before the State Tax Commission at the time they brought this action. 80 Because petitioners failed to exhaust their administrative remedies in each tax year for which they seek damages, their complaint was properly dismissed. To the extent today's judgment affirms that dismissal, I concur. 1 Fair Assessment in Real Estate Assn., Inc. v. McNary, 478 F.Supp. 1231 (1979), aff'd, 622 F.2d 415 (1980). 2 Compare Fulton Market Storage Co. v. Cullerton, 582 F.2d 1071 (CA7 1978), cert. denied, 439 U.S. 1121, 99 S.Ct. 1033, 59 L.Ed.2d 82 (1979), with Fair Assessment in Real Estate Assn., Inc. v. McNary, supra; Ludwin v. City of Cambridge, 592 F.2d 606 (CA1 1979); and Bland v. McHann, 463 F.2d 21 (CA5 1972), cert. denied, 410 U.S. 966, 93 S.Ct. 1438, 35 L.Ed.2d 700 (1973). 3 We held in Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979), that 28 U.S.C. § 1343, the jurisdictional counterpart of 42 U.S.C. § 1983, was narrower in scope than the latter. Because there can be no doubt that a claim of denial of due process or equal protection under the Fourteenth Amendment, which these petitioners asserted, would come under the narrower construction of § 1343 adopted by the Court in Chapman, supra, it is unnecessary to pursue here the difference between § 1983 and § 1343. 4 The result we reach today was foreshadowed by our decision last Term in Rosewell v. LaSalle National Bank, 450 U.S. 503, 101 S.Ct. 1221, 67 L.Ed.2d 464 (1981), wherein we stated that "even where the Tax Injunction Act would not bar federal-court interference in state tax administration, principles of federal equity may nevertheless counsel the withholding of relief. See Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 301, [63 S.Ct. 1070, 1074, 87 L.Ed. 1407] (1943)." Id., at 525-526, n.33, 101 S.Ct., at 1235, n.33. We need not decide in this case whether the comity spoken of would also bar a claim under § 1983 which requires no scrutiny whatever of state tax assessment practices, such as a facial attack on tax laws colorably claimed to be discriminatory as to race. 5 Of course, the Court had not yet broadly interpreted the Civil Rights Act to permit federal damages actions for state violations of constitutional rights, brought prior to exhaustion of state remedies. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The closest pre-Act case to a federal damages action was a suit for refund of state taxes allegedly assessed in violation of the Fourteenth Amendment. First National Bank v. Board of County Commissioners, 264 U.S. 450, 44 S.Ct. 385, 68 L.Ed. 784 (1924). Consistent with the federal-court deference for state tax matters of which we speak today, the Court held that the action was barred by the parties' failure to exhaust their available state remedies. Id., at 456, 44 S.Ct., at 387. Although declaratory actions were available before 1937, they were seldom used. See Note, Federal Declaratory Judgments on the Validity of State Taxes, 50 Yale L.J. 927, 929-930, and n. 14 (1941). 6 Justice BRENNAN has cogently explained the reasons behind federal-court deference for state tax administration: "The special reasons justifying the policy of federal noninterference with state tax collection are obvious. The procedures for mass assessment and collection of state taxes and for administration and adjudication of taxpayers' disputes with tax officials are generally complex and necessarily designed to operate according to established rules. State tax agencies are organized to discharge their responsibilities in accordance with the state procedures. If federal declaratory relief were available to test state tax assessments, state tax administration might be thrown into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law. During the pendency of the federal suit the collection of revenue under the challenged law might be obstructed, with consequent damage to the State's budget, and perhaps a shift to the State of the risk of taxpayer insolvency. Moreover, federal constitutional issues are likely to turn on questions of state tax law, which, like issues of state regulatory law, are more properly heard in the state courts." Perez v. Ledesma, 401 U.S. 82, 128, n. 17, 91 S.Ct. 674, 699, n. 17, 27 L.Ed.2d 701 (1971) (concurring in part and dissenting in part). 7 Other federal courts have reached this same conclusion. For example, in Advertiser Co. v. Wallace, 446 F.Supp. 677, 680 (MD Ala.1978), the court concluded that "[a]lthough perhaps less coercive than anticipatory relief and less intrusive than a refund, the damage award plaintiff seeks, especially its request for punitive damages, still is designed to deter collection of the taxes now being assessed by defendants." And the court in Evangelical Catholic Communion, Inc. v. Thomas, 373 F.Supp. 1342, 1344 (Vt.1973), correctly stated: "It is elementary that constitutional rights must be found to have been abridged in order for damages to be recovered in a civil rights action. Thus the plaintiffs in this action cannot recover damages without a determination by this court that the taxation of their Newbury property was effected in violation of their constitutional rights. If we were to make such a determination, we would, in effect, be issuing a declaratory judgment regarding the constitutionality of the tax levied on the plaintiffs. As the court is prohibited from issuing such a declaratory judgment, . . . the court is also precluded as a matter of law from adjudicating the plaintiffs' damages claims." 8 We discern no significant difference, for purposes of the principles recognized in this case, between remedies which are "plain, adequate, and complete," as that phrase has been used in articulating the doctrine of equitable restraint, and those which are "plain, speedy and efficient," within the meaning of § 1341. See, e.g., Tully v. Griffin, Inc., 429 U.S. 68, 73-74, 97 S.Ct. 219, 222-223, 50 L.Ed.2d 227 (1976); Hillsborough v. Cromwell, 326 U.S. 620, 622-623, 66 S.Ct. 445, 447-448, 90 L.Ed. 358 (1946); Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S., at 297-299, 63 S.Ct., at 1072-1073; Matthews v. Rodgers, 284 U.S., at 525-526, 52 S.Ct., at 219-220. Both phrases refer to the obvious precept that plaintiffs seeking protection of federal rights in federal courts should be remitted to their state remedies if their federal rights will not thereby be lost. Numerous federal decisions have treated the adequacy of state remedies, and it is to that body of law that federal courts should look in seeking to determine the occasions for the comity spoken of today. 1 The court focused on the claims of the Cassillys, the individual petitioners, dismissing FAIR's complaint because it is "obviously in the same position as the individual plaintiffs." Petitioners do not challenge that determination in this Court, but rather concede that the "case turns" solely on the claims of the individuals. Reply Brief for Petitioners 4, n. 2; Brief for Petitioners 8. 2 To recognize the nature of the principle does not, of course, detract from the fact that its manifestations can be clearly seen in the cases of this Court, and in the Acts of Congress, long before Younger v. Harris. Indeed, the historic treatment of state tax litigation in the cases of this Court, and in Congress, provides an excellent illustration of the settled scope of the comity principle as a source of both judicial and congressional doctrine. The Court's failure today to acknowledge the substantive limits of the principle may in part be the product of the fact that the "principle of comity" is not at all tied to concrete language in any constitutional or statutory provision. See L. Tribe, American Constitutional Law § 3-41 (1978). 3 The distinction between federal court jurisdiction and the exercise of equitable power did not escape Chief Justice Stone writing for the Court in Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943): "This Court has recognized that the federal courts, in the exercise of the sound discretion which has traditionally guided courts of equity in granting or withholding the extraordinary relief which they may afford, will not ordinarily restrain state officers from collecting state taxes where state law affords an adequate remedy to the taxpayer. This withholding of extraordinary relief by courts having the authority to give it is not a denial of the jurisdiction which Congress has conferred on the federal courts. . . . On the contrary, it is but a recognition that the jurisdiction conferred on the federal courts embraces suits in equity as well as law, and that a federal court of equity, which may in an appropriate case refuse to give its special protection to private rights when the exercise of its jurisdiction would be prejudicial to the public interest, should stay its hand in the public interest when it reasonably appears that private interests will not suffer. "It is in the public interest that federal courts of equity should exercise their discretionary power to grant or withhold relief so as to avoid needless obstruction of the domestic policy of the states." Id., at 297-298, 63 S.Ct., at 1072-1073 (citations omitted; emphasis added). 4 "Abstention" is often cited as an application of the comity principle. See, e. g., Wells, The Role of Comity in the Law of Federal Courts, 60 N.C.L.Rev. 59, 63-68 (1981). Not surprisingly then, we have applied the abstention doctrine only in equity actions. See Railroad Comm'n v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L.Ed. 971 (1941) ("The resources of equity are equal to an adjustment that will avoid the waste of a tentative decision as well as the friction of a premature constitutional adjudication"); Burford v. Sun Oil Co., 319 U.S. 315, 318, 63 S.Ct. 1098, 1099, 87 L.Ed. 1424 (1943) ("as a matter of sound equitable discretion"). In Pullman, the Court described the equitable origins of the rule: "An appeal to the chancellor . . . is an appeal to the 'exercise of the sound discretion which guides the determination of courts of equity.' . . . The history of equity jurisdiction is the history of regard for public consequences in employing the extraordinary remedy of the injunction. . . . Few public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies. . . ." 312 U.S., at 500, 61 S.Ct., at 645. But even assuming "abstention" might have some application in actions at law, cf. Clay v. Sun Insurance Office Ltd., 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1960) (certifying a question to the state court in a legal action), it is quite clear that the doctrine would not extend so far as wholly to deprive the litigant of his federal forum. The abstention doctrines are founded on the recognition that state, not federal, courts are the final expositors of state law, and thus reflect a justifiable diffidence on the part of federal courts confronted with novel state law questions. Abstention is thus narrowly drawn to meet the particularized need it serves. The federal court remains open to the litigant to present his federal claim should the action for which he is remitted to state court fail to afford relief. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). See also Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 29, 79 S.Ct. 1070, 1073, 3 L.Ed.2d 1058 (1959) ("This course does not constitute abnegation of judicial duty. On the contrary, it is a wise and productive discharge of it. There is only postponement of decision for its best fruition"). Principles of comity are also reflected in federal habeas practice. While current habeas jurisdiction is wholly a statutory matter, 28 U.S.C. § 2254, comity surely played a part in the development of the exhaustion requirement. See Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886). But the judicial creation of that requirement reflected no usurpation of judicial power. Issuance of the Great Writ was historically regarded as a matter of equitable discretion. See Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837 (1963). 5 This is not to suggest that there is no occasion to apply principles of comity in actions at law. The doctrine of exhaustion of administrative remedies, while based primarily on concerns of judicial administration, see Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463-464, 82 L.Ed. 638 (1938), and which reflects principles of avoidance of unnecessary litigation, deference to administrative expertise, and "notions of administrative autonomy," see McKart v. United States, 395 U.S. 185, 194-195, 89 S.Ct. 1657, 1662-1663 23 L.Ed.2d 194 (1969), is surely broad enough to encompass comity concerns as well. Cf. First National Bank of Greeley v. Board of Commissioners of Weld County, 264 U.S. 450, 44 S.Ct. 385, 68 L.Ed. 784 (1924). But the role of comity must narrow with the scope of judicial discretion, and, in regard to suits seeking monetary relief, that discretion is limited. 6 The Court explained the equitable foundations of anticipatory relief: "The jurisdiction of the district court in the present suit, praying an adjudication of rights in anticipation of their threatened infringement, is analogous to the equity jurisdiction. . . . Called upon to adjudicate what is essentially an equitable cause of action, the district court was as free as in any other suit in equity to grant or withhold the relief prayed, upon equitable grounds." 319 U.S., at 300, 63 S.Ct., at 1074. 7 A similar desire to ensure that state and local governments not be deprived of the use of tax proceeds until the lawfulness of the levy was finally determined, was largely responsible for enactment of the Tax Injunction Act. See infra, at 129-130, and n. 16. 8 The Court suggests that if the District Court determines that the assessments in question here were unlawful, the state officials "would promptly cease the conduct found to have infringed petitioners' constitutional rights," and thus the determination of unlawfulness would operate to "suspend" collection of state taxes. Ante, at 115. But I would never have thought this result something to be avoided. The Great Lakes rule seeks to avoid withholding tax funds from local authorities until the tax is determined to be unlawful, not afterwards. 9 The Civil Rights Act that became § 1981 was passed by Congress in 1868. The reference to "taxes" was added in 1870. See County of San Mateo v. Southern Pacific R. Co., 13 F. 145, 151 (CC Cal.1882) (Justice Field). At least one state tax case seeking a damages remedy has involved a claim under § 1981. Garrett v. Bamford, 538 F.2d 63 (CA3 1976). 10 Actions challenging the constitutionality of state taxation have also been held to fall within the general federal question jurisdiction, 28 U.S.C. § 1331. See, e. g., Raymond v. Chicago Union Traction Co., 207 U.S. 20, 35, 28 S.Ct. 7, 12, 52 L.Ed. 78 (1907) ("The claim that the action of the state board of equalization in making the assessment under consideration was the action of the State, and if carried out would violate the provisions of the Fourteenth Amendment to the Constitution of the United States, by taking property of the appellee without due process of law, and by failing to give it the equal protection of the laws, constitutes a Federal question beyond all controversy"); County of San Mateo v. Southern Pacific R. Co., supra; Louisville & N. R. Co. v. Bosworth, 230 F. 191 (ED Ky.1915). 11 The jurisdictional grant reflects a congressional policy pronouncement on the role of the federal courts in our federal system. The Civil Rights Acts, passed between 1866 and 1875, and made federally cognizable by 28 U.S.C. § 1343(3), were followed by the Act of Mar. 3, 1875, which granted the federal courts jurisdiction over all federal statutory and constitutional questions where the requisite amount in controversy was met. § 1, 18 Stat. 470. It hardly disparages the current standing of the state courts as qualified adjudicators of federal rights exercising jurisdiction concurrent with that of the federal courts, to note that at the time of the enactment there was a more than modest distrust of the state courts as protectors of federal rights, see Mitchum v. Foster, 407 U.S. 225, 238-242, 92 S.Ct. 2151, 2160-2162, 32 L.Ed.2d 705 (1972), and that "[b]y that statute '. . . Congress gave the federal courts the vast range of power which had lain dormant in the Constitution since 1789. These courts ceased to be restricted tribunals of fair dealing between citizens of different states and became the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States.' " Zwickler v. Koota, 389 U.S. 241, 247, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (1967) (emphasis in the opinion), quoting F. Frankfurter & J. Landis, The Business of the Supreme Court: A Study in the Federal Judicial System 65 (1927). 12 We stated in Zwickler : "Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility, equally with the federal courts, '. . . to guard, enforce, and protect every right granted or secured by the Constitution of the United States. . . .' 'We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum.' " 389 U.S., at 248, 88 S.Ct., at 395 (citations omitted). 13 I might also question whether these terms are totally devoid of specialized legal meaning, for they surely seem to evoke association with the language of equitable actions. See, e. g., Dows v. Chicago, 11 Wall. 108, 110, 20 L.Ed. 65 (1871) ("No court of equity will . . . allow its injunction to issue to restrain their action . . .") (emphasis added); Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S., at 299, 63 S.Ct., at 1073 (1943) ("suspend collection of the state taxes until the litigation is ended"). 14 To be cognizable in a court of equity, it was understood that "the case must be brought within some of the recognized foundations of equitable jurisdiction, and that mere errors or excess in valuation, or hardship or injustice of the law, or any grievance which can be remedied by a suit at law, either before or after payment of taxes, will not justify a court of equity to interpose by injunction to stay collection of a tax." State Railroad Tax Cases, 92 U.S. 575, 614, 23 L.Ed. 663 (1876). The limitations of federal equity practice in 1876 intensified the need for restraint. Because the equity court was limited to enjoining the collection of the tax as a whole, the effect of injunctive relief was to allow the complainant to escape payment of all taxes due, even though the portion that reflected the lawful assessment should, in justice, have been paid. Id., at 614-615. 15 England v. Louisiana State Board of Medical Examiners, 375 U.S., at 431, 84 S.Ct., at 473 (Douglas, J., concurring). Two features of federal equity practice explained this willingness to grant equitable relief. The first was the construction that this Court placed on the equitable maxim that equity jurisdiction does not lie where there exists an adequate legal remedy. The Court had held that the "adequate legal remedy" must be one cognizable in federal court. City Bank Co. v. Schnader, 291 U.S. 24, 29, 54 S.Ct. 259, 261, 78 L.Ed. 628 (1934). Where the limitations on federal jurisdiction would preclude adjudication of the suit for monetary relief, either because of the mandate of the Eleventh Amendment, or otherwise, the barrier to federal injunctive intervention was thus removed. The States had for the most part denied their courts the power to grant anticipatory relief against the collection of taxes. See Culp, The Powers of a Court of Equity in State Tax Litigation, 38 Mich.L.Rev. 610, 618-631 (1940). It was this imbalance in the powers of the state and federal judicial systems that was "particularly remedied" by passage of the Tax Injunction Act. H.R.Rep.No.1503, 75th Cong., 1st Sess., 3 (1937). The second feature was that the federal courts, in construing strictly the requirement that the remedy available at law be "plain, adequate and complete," see supra, at 127, had frequently concluded that the procedures provided by the State were not adequate. See Note, Federal Court Interference with the Assessment and Collection of State Taxes, 59 Harv.L.Rev. 780, 782-783 (1946). The Tax Injunction Act set forth a more deferential standard by which to evaluate the adequacy of the state remedy. See Rosewell v. LaSalle National Bank, 450 U.S. 503, 101 S.Ct. 1221, 67 L.Ed.2d 464 (1981). Thus, in this respect too, the Tax Injunction Act limited the equitable range of the district court and brought federal court practice more closely into line with that of state courts—which assuredly were required to act within the bounds of state law and procedure without regard to whether the federal courts considered that law and procedure "plain, adequate and complete." 16 The Report further noted: "It is the common practice for statutes of the various States to forbid actions in State courts to enjoin the collection of State and county taxes unless the tax law is invalid or the property is exempt from taxation, and these statutes generally provide that taxpayers may contest their taxes only in refund actions after payment under protest. This type of State legislation makes it possible for the States and their various agencies to survive while long-drawn-out tax litigation is in progress. If those to whom the Federal courts are open may secure injunctive relief against the collection of taxes, the highly unfair picture is presented of the citizen of the State being required to pay first and then litigate, while those privileged to sue in the Federal courts need only pay what they choose and withhold the balance during the period of litigation. "The existing practice of the Federal courts in entertaining tax-injunction suits against State officers makes it possible for foreign corporations doing business in such States to withhold from them and their governmental subdivisions, taxes in such vast amounts and for such long periods of time as to seriously disrupt State and county finances. The pressing needs of these States for this tax money is so great that in many instances they have been compelled to compromise these suits, as a result of which substantial portions of the tax have been lost to the States without a judicial examination into the real merits of the controversy." S.Rep.No.1035, at 1-2. 17 The brief quotes from many of the cases discussed in Part III-B, supra, supporting the view that the federal forum would continue to be available. To be sure, the House and Senate Reports focus on actions brought under diversity jurisdiction. But this emphasis merely reflects the fact that Congress was particularly concerned about the advantage conferred on out-of-state corporations by virtue of diversity jurisdiction. Just as it was unlikely that Congress, by enacting 28 U.S.C. § 1341, sought to limit federal equity power only in diversity cases, see Rosewell v. LaSalle National Bank, 450 U.S., at 522-523, n. 29, 101 S.Ct., at 1234, n. 29, it is implausible that Congress wished to ensure the continued availability of diversity jurisdiction in actions at law, while implicitly barring damages actions arising under the Constitution and laws of the United States. 18 And in the cases that succeeded the Act. See supra, at 122-123. 19 See Apartments Bldg. Co. v. Smiley, 32 F.2d 142, 143 (CA8 1929). A like rule applied in equity actions. See Gorham Mfg. Co. v. State Tax Comm'n, 266 U.S. 265, 269-270, 45 S.Ct. 80, 81, 69 L.Ed. 279 (1924); First National Bank of Greenville v. Gildart, 64 F.2d 873, 874-875 (CA5 1933); McDougal v. Mudge, 233 F. 235, 237 (CA8 1916). 20 Revised Statutes § 5219 allowed state and local taxation of the shares of a national bank "subject only to the two restrictions, that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State, and that the shares of any national banking association owned by non-residents of any State shall be taxed in the city or town where the bank is located, and not elsewhere. Nothing herein shall be construed to exempt the real property of associations from either State, county, or municipal taxes, to the same extent, according to its value, as other real property is taxed." 21 Plaintiff in error charged that the "banks of Weld county were assessed and compelled to pay upon a valuation grossly in excess of that put upon other property in the same county and likewise in excess of that put upon other banks in other counties of the State." 264 U.S., at 452-453, 44 S.Ct., at 386-387. 22 The exhaustion rule stated in Weld County, reflecting the established practice in state tax matters, was limited to exhaustion of administrative, but not judicial, remedies. See id., at 456, 44 S.Ct., at 387. Stason, Judicial Review of Tax Errors—Effect of Failure to Resort to Administrative Remedies, 28 Mich.L.Rev. 637, 659, and n. 47 (1930) ("In no case, so far as the present examination of authorities has disclosed, has it been held that the taxpayer must resort to available modes of direct attack by judicial proceedings, before proceeding with collateral attack, except in injunction cases in which an injunction is refused because of the adequacy of the legal remedy"). 23 In Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938), which set forth the exhaustion requirement with respect to federal administrative remedies, Justice Brandeis noted that the exhaustion rule had frequently been applied in equity cases. Id., at 51, n. 9, 58 S.Ct., at 463 n. 9. "But," he added, "because the rule is one of judicial administration—not merely a rule governing the exercise of discretion—it is applicable to proceedings at law as well as suits in equity," ibid., citing Weld County. 24 Petitioners seek to distinguish this case from Weld County, arguing that in Weld County the action was brought against the county directly, and was thus in effect a suit for a refund for which exhaustion might be appropriate, while this action has been brought pursuant to 42 U.S.C. § 1983 against officials of the county, seeking damages. The distinction is unpersuasive. Any relief obtained by petitioners through the administrative process would, of course, reduce the potential damages liability of these defendants. Moreover, a city or county might itself be susceptible to suit under 42 U.S.C. § 1983 where (as is apparently the allegation here) it is alleged that the unlawful assessments are an artifact of official policy. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Petitioners should not be able to circumvent the exhaustion requirement by designedly not bringing suit against the single potential defendant to have actually benefited from the collection of the allegedly unlawful tax. Finally, petitioners' argument is particularly inapt in this case. Many of the officials named as defendants have no small involvement in the administrative process. It surely seems appropriate that before being held accountable in court those officials have the opportunity fully to consider petitioners' claims within the administrative forum that provides the only basis for their involvement in this matter. See McKart v. United States, 395 U.S., at 195, 89 S.Ct., at 1663. Of course, it is unnecessary to decide whether the allegations in the complaint at issue here do state a claim under 42 U.S.C. § 1983. 25 I dissented in Preiser because I saw insufficient justification there to warrant displacement of the § 1983 remedy in favor of a habeas corpus procedure involving exhaustion of state judicial remedies. 26 See also H.R.Rep. No. 1503, at 4: " '[T]he aggrieved party is left to . . . his suit at law in the Federal courts if the essential elements of Federal jurisdiction are present.' " (quoting Matthews v. Rodgers, 284 U.S. 521, 525-526, 52 S.Ct. 217, 219-220, 76 L.Ed. 447 (1932)). 27 In Perez v. Ledesma, 401 U.S. 82, 128, n. 17, 91 S.Ct. 674, 699 n.17, 27 L.Ed.2d 701 (1971) (concurring in part and dissenting in part), I noted the policies that have motivated both judicial and congressional restraint in this field: "The special reasons justifying the policy of federal noninterference with state tax collection are obvious. The procedures for mass assessment and collection of state taxes and for administration and adjudication of taxpayers' disputes with tax officials are generally complex and necessarily designed to operate according to established rules. State tax agencies are organized to discharge their responsibilities in accordance with the state procedures. If federal declaratory relief were available to test state tax assessments, state tax administration might be thrown into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law. During the pendency of the federal suit the collection of revenue under the challenged law might be obstructed, with consequent damage to the State's budget, and perhaps a shift to the State of the risk of taxpayer insolvency. Moreover, federal constitutional issues are likely to turn on questions of state tax law, which, like issues of state regulatory law, are more properly heard in the state courts." Thus I recognize, as does the Court, those considerations that have prompted federal restraint in matters of state taxation. My quarrel with the Court is that in my view those concerns can be, and historically have been, addressed by means far less drastic than the judicial abnegation of federal court jurisdiction. The administrative-exhaustion requirement squarely meets those concerns. Indeed, the problems perhaps least well met by the administrative-exhaustion requirement are adequately served by other established mechanisms of federal restraint: the possibility of an unwarranted financial burden on the taxing authority during the pendency of litigation is directly addressed by the Tax Injunction Act itself and our restriction on the use of the declaratory judgment procedure; the primacy of the state courts as expositors of state tax law prevails through application of principles of abstention as enunciated in Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).

89

454 U.S. 201 102 S.Ct. 233 70 L.Ed.2d 345 George A. RALSTON, Warden, Petitioner,v.John Carroll ROBINSON. No. 80-2049. Argued Oct. 5, 1981. Decided Dec. 2, 1981. Rehearing Denied Jan. 25, 1982. See 455 U.S. 929, 102 S.Ct. 1293. Syllabus Respondent, when 17 years old, pleaded guilty to second-degree murder and was sentenced to 10 years' imprisonment under the Federal Youth Corrections Act (YCA), 18 U.S.C. § 5010(c). Subsequently, while incarcerated, he was found guilty of assaulting a federal officer, and the District Court imposed an adult sentence to be served consecutively to the YCA sentence, finding that respondent would not benefit from any further treatment under the YCA. Later, while still incarcerated, respondent pleaded guilty to another charge of assaulting a federal officer, and the District Court sentenced him to a further adult sentence to be served consecutively to the sentence he was then serving. The Bureau of Prisons then classified respondent as an adult offender, and accordingly, since that time, he has not been segregated from adult prisoners and has not been offered the YCA rehabilitative treatment that the initial trial court recommended. After exhausting his administrative remedies, respondent filed a petition for habeas corpus. The District Court granted the writ, and the Court of Appeals affirmed, holding that the YCA forbids the reevaluation of a YCA sentence by a second judge, even if the second judge makes a finding that further YCA treatment would not benefit the offender. Held: The YCA does not require YCA treatment for the remainder of a youth sentence where the judge imposing the subsequent adult sentence determines, as here, that such treatment will not benefit the offender further. Pp. 206-220. (a) The YCA strongly endorses a judge's discretionary power to choose among available sentencing options, and prescribes certain basic conditions of treatment for YCA offenders. By determining that the youth offender should be sentenced under the YCA, the trial court in effect decides that the Bureau of Prisons must comply with both the segregation and treatment requirements of the statute. Correctional authorities may not exercise any of the sentencing powers established in the YCA. Pp. 206-210. (b) The language of § 5010(c) authorizing a court to "sentence the youth offender to the custody of the Attorney General for treatment and supervision" pursuant to the YCA, and of § 5011 providing that "[c]ommitted youth offenders . . . shall undergo treatment in institutions . . . that will provide the essential varieties of treatment" and that "such youth offenders shall be segregated from other offenders," does not prohibit any modification of the basic terms of a YCA sentence before its expiration. That is, such language does not require the judge to make an irrevocable determination of segregation or treatment needs, nor preclude a subsequent judge from redetermining those needs in light of intervening events. Pp. 210-211. (c) On the other hand, the YCA does not give the Bureau of Prisons independent authority to deny a youth offender the treatment and segregation from adults that a sentencing court mandates. Pp. 211-213. (d) The purposes of the YCA, as revealed in its structure and legislative history, compel the conclusion that a court faced with a choice of sentences for a youth offender still serving a YCA term is not deprived of the option of finding no further benefit in YCA treatment for the remainder of the term. Such history and structure also demonstrate Congress' intent that a court—but not prison officials—may require a youth offender to serve the remainder of a YCA sentence as an adult after the offender has received a consecutive adult term. When Congress withdrew from prison officials some of their traditional authority to adjust conditions of confinement, it could not have intended that no one exercise that authority, the only reasonable conclusion being that Congress reposed that authority in the court. Pp. 213-217. (e) The standards that a district judge should apply in determining whether an offender will obtain any further benefit from YCA treatment are no different from the standards applied in imposing the sentence originally. In light of all relevant factors, the judge can exercise his sound discretion in determining whether the offender should receive youth or adult treatment for the remainder of his term, and should make a judgment informed by both the YCA's rehabilitative purposes and the offender's realistic circumstances. Here, the second sentencing judge made a sufficient finding that respondent would not benefit from YCA treatment during the remainder of his youth term. P. 218-219. 642 F.2d 1077 (7th Cir.), reversed and remanded. David A. Strauss, for petitioner, pro hac vice, by special leave of Court. Jerold S. Solovy, Chicago, Ill., for respondent. Justice MARSHALL delivered the opinion of the Court. 1 We granted certiorari in this case, 452 U.S. 960, 101 S.Ct. 3107, 69 L.Ed.2d 970 (1981), to decide whether a youth offender who is sentenced to a consecutive adult term of imprisonment while serving a sentence imposed under the Federal Youth Corrections Act (YCA), 18 U.S.C. § 5005 et seq., must receive YCA treatment for the remainder of his youth sentence. The Courts of Appeals are in conflict on this issue.1 We conclude that the YCA does not require such treatment if the judge imposing the subsequent adult sentence determines that the youth will not benefit from further YCA treatment during the remainder of his youth sentence. Accordingly, we reverse the judgment of the Court of Appeals. 2 * In 1974 respondent, who was 17 years old, pleaded guilty to a charge of second-degree murder and was sentenced to a 10-year term of imprisonment under the YCA, § 5010(c). The sentencing judge recommended that he be placed at the Kennedy Youth Center in Morgantown, W. Va.; that he not be released until he had attained at least an eighth-grade level of education and had successfully completed a trade of his own choosing; and that he participate in intensive, individual therapy on a weekly basis and undergo a complete psychological reevaluation before being returned to the community. The sentence, like all YCA sentences, contemplated that the respondent be segregated from adult offenders. See 18 U.S.C. § 5011. 3 Respondent's subsequent conduct has not been exemplary. In 1975, while incarcerated at the Federal Correctional Institution (FCI) at Ashland, Ky., respondent was found guilty of assaulting a federal officer by use of a dangerous weapon, in violation of 18 U.S.C. §§ 111 and 1114. The United States District Court for the Eastern District of Kentucky imposed an additional 10-year adult sentence and stated in its commitment order: "The Court finds that the defendant will not benefit any further under the provisions of the [YCA] and declines to sentence under said act." After receiving a presentence report, the judge reduced the sentence to 66 months, to be served consecutively to the YCA sentence. The judge also recommended that respondent be transferred from the Kentucky institution "to a facility providing greater security." 4 Respondent was placed in the Federal Correctional Institution at Oxford, Wis. Subsequent disciplinary problems resulted in his transfer to the FCI at Lompoc, Cal. In 1977, while confined in that institution, respondent pleaded guilty to another charge of assaulting a federal officer. The United States District Court for the Central District of California sentenced him under 18 U.S.C. § 5010(d) to an adult sentence of one year and one day and ordered that the sentence run consecutive to and not concurrent with the sentence that respondent was then serving. 5 After the second adult sentence, the Bureau of Prisons classified respondent as an adult offender. Accordingly, at least since that time,2 respondent has not been segregated from the adult prisoners, and has not been offered the YCA rehabilitative treatment that the initial trial court recommended. The Bureau of Prisons acted pursuant to a written policy when it classified respondent as an adult. In implementing the YCA's treatment and segregation requirements, the Bureau narrowly defines a "YCA Inmate" as "any inmate sentenced under 18 USC Section 5010(b), (c), or (e) who is not also sentenced to a concurrent or consecutive adult term, whether state or federal." Bureau of Prisons Policy Statement No. 5215.2, p. 1 (Dec. 12, 1978) (emphasis added). 6 Respondent exhausted his administrative remedies and filed a petition for habeas corpus on May 25, 1978. The Magistrate recommended transfer to an institution in which respondent would be segregated from adults and would receive YCA treatment. The United States District Court for the Southern District of Illinois issued an order granting the writ, which was affirmed by the United States Court of Appeals for the Seventh Circuit. 642 F.2d 1077 (1981). The Court of Appeals held that the YCA forbids the reevaluation of a YCA sentence by a second judge, even if the second judge makes an explicit finding that further YCA treatment would not benefit the offender. The Court of Appeals also rejected petitioner's broader argument that the YCA vests discretion in the Bureau of Prisons to modify the treatment terms of a YCA sentence when the offender has received a consecutive or concurrent adult sentence for a felony. 7 On January 9, 1982, respondent will be conditionally released from his YCA sentence and will begin his first adult sentence. II 8 In Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974), this Court exhaustively analyzed the history, structure, and underlying policies of the YCA. From that analysis, and from the language of the YCA, two relevant principles emerge. First, the YCA strongly endorses the discretionary power of a judge to choose among available sentencing options. Second, the YCA prescribes certain basic conditions of treatment for YCA offenders. 9 In Dorszynski, THE CHIEF JUSTICE, writing for the Court, found that the principal purpose of the YCA is to rehabilitate persons who, because of their youth, are unusually vulnerable to the danger of recidivism: 10 "To accomplish this objective, federal district judges were given two new alternatives to add to the array of sentencing options previously available to them . . .: first, they were enabled to commit an eligible offender to the custody of the Attorney General for treatment under the Act. 18 U.S.C. §§ 5010(b) and (c). Second, if they believed an offender did not need commitment, they were authorized to place him on probation under the Act. 18 U.S.C. § 5010(a). If the sentencing court chose the first alternative, the youth offender would be committed to the program of treatment created by the Act." Id., at 433, 94 S.Ct., at 3048.3 11 If a court wishes to sentence a youth to an adult sentence, it is authorized to do so under § 5010(d). In Dorszynski, a majority of this Court held that a judge must make an explicit "no benefit" finding to invoke this subsection, but need not give a statement of reasons to justify his decision. Both the majority and concurring opinions emphasized that the YCA was not intended to disturb the broad discretion traditionally available to federal judges in choosing among appropriate sentences. 418 U.S., at 436-442, 94 S.Ct., at 3049-52; id., at 450, 94 S.Ct., at 3056 (MARSHALL, J., with whom Douglas, BRENNAN, and Stewart, JJ., joined, concurring in judgment). 12 We reiterated that trial courts retain significant control over sentencing options in Durst v. United States, 434 U.S. 542, 98 S.Ct. 849, 55 L.Ed.2d 14 (1978), where we unanimously held that the YCA permits the court to impose a fine or require restitution when it places a youth on probation under § 5010(a). In his opinion for the Court, Justice BRENNAN explained the underlying purposes of the Act: 13 "The core concept of the YCA, like that of England's Borstal System upon which it is modeled, is that rehabilitative treatment should be substituted for retribution as a sentencing goal. Both the Borstal System and the YCA incorporate three features thought essential to the operation of a successful rehabilitative treatment program: flexibility in choosing among a variety of treatment settings and programs tailored to individual needs; separation of youth offenders from hardened criminals; and careful and flexible control of the duration of commitment and of supervised release." Id., at 545-546, 98 S.Ct., at 851 (footnotes omitted). 14 A second important feature of the YCA is that it empowers, and indeed requires, a judge to prescribe certain basic conditions of YCA treatment. This prescription ensures that treatable youth offenders are segregated from adult criminals, and that they receive appropriate rehabilitative care. 15 The need to segregate youth from adult criminals drew special attention in the legislative history. Proponents of the statute criticized the practice of "herding youth with maturity, the novice with the sophisticate, the impressionable with the hardened, and . . . subjecting youth offenders to the evil influences of older criminals and their teaching of criminal techniques. . . ." H.R.Rep. No. 2979, 81st Cong., 2d Sess., 2-3 (1950); see 96 Cong.Rec. 15036 (1950), U.S.Code Cong. & Admin.News 1950, pp. 3983, 3985. This concern was expressed in the statutory requirement that offenders receiving youth sentences be segregated from adults. 18 U.S.C. § 5011.4 More generally, "[t]he panoply of treatment options available under the Act is but further evidence that the YCA program was intended to be sufficiently comprehensive to deal with all but the 'incorrigible' youth." Dorszynski, supra, at 449, 94 S.Ct., at 3055 (MARSHALL, J., concurring in judgment) (footnote omitted). 16 The YCA allocates responsibility for determining essential treatment conditions in an unusual way. Under traditional sentencing statutes, prison officials exercise almost unlimited discretion in imposing the security and treatment conditions that they believe appropriate. The YCA is different. By determining that the youth offender should be sentenced under the YCA, the trial court in effect decides two essential conditions of confinement: the Bureau of Prisons must comply with both the segregation and treatment requirements of the YCA. 18 U.S.C. § 5011. See Brown v. Carlson, 431 F.Supp. 755, 765 (WD Wis. 1977); Hearings on S. 1114 and S. 2609 before a Subcommittee of the Senate Committee on the Judiciary, 81st Cong., 1st Sess., 43-44 (1949) (statement of Judge Parker) (hereinafter 1949 Senate Hearings); Report to the Judicial Conference of the Committee on Punishment for Crime 8-9 (1942). The Bureau retains significant discretion in determining the conditions of confinement, see infra, at 211, but its discretion is limited by these requirements. 17 The history of the YCA's passage buttresses the conclusion that correctional authorities may not exercise any of the sentencing powers established in the Act: 18 "The initial legislative proposal, an American Law Institute model Act, removed the power to sentence eligible offenders from the trial judges altogether and reposed that power in a correctional authority. Not surprisingly, that proposal brought swift and sharp criticism from the judges whose power was to be sharply curtailed. The next proposal, by the Judicial Conference, involved shared sentencing powers between trial judges and correctional authorities. It met with similar criticism. The 1949 proposal, which was finally enacted into law, retained sentencing power in the trial judge." Dorszynski, 418 U.S., at 446-447, 94 S.Ct., at 3054 (MARSHALL, J., with whom Douglas, BRENNAN, and Stewart, JJ., joined concurring in judgment) (footnotes omitted). 19 This unusual responsibility for treatment conditions demands that the sentencing judge thoroughly understand all available facts relevant to the offender's treatment needs. Thus, the statute provides the trial court with the opportunity to obtain an extremely comprehensive presentence report, 18 U.S.C. § 5010(e). See S.Rep. No. 1180, 81st Cong., 1st Sess., 5 (1949); 1949 Senate Hearings, at 18-19 (statement of Chief Judge Laws); Hearings on H.R. 2139 and H.R. 2140 Before Subcommittee No. 3 of the House Committee on the Judiciary, 78th Cong., 1st Sess., 63-64 (1943) (statement of Judge Laws). With this framework in mind, we will review the parties' statutory arguments. III 20 Respondent asserts that the express language of the YCA prohibits any modification of the basic terms of a YCA sentence before its expiration. Respondent first points to § 5010(c), which authorizes a court to "sentence the youth offender to the custody of the Attorney General for treatment and supervision pursuant to this chapter for any further period [beyond six years] that may be authorized by law for the offense . . . or until discharged by the [United States Parole] Commission." Respondent also relies on § 5011, which provides that "[c]ommitted youth offenders . . . shall undergo treatment in institutions . . . that will provide the essential varieties of treatment," and that "[i]nsofar as practical, such institutions and agencies shall be used only for treatment of committed youth offenders, and such youth offenders shall be segregated from other offenders, and classes of committed youth offenders shall be segregated according to their needs for treatment" (emphasis added). From this language, respondent argues that the essential segregation and treatment requirements of the initial YCA sentence cannot be modified before the sentence expires. 21 We are not persuaded by this interpretation. Section 5010 enables the sentencing court to determine whether a youth offender would benefit from treatment under the YCA. If the original sentencing court determines that such treatment would be beneficial, it may sentence the youth offender under § 5010(a), (b), or (c), or it may request additional information under § 5010(e). Once the original sentencing court has made this determination and has sentenced the offender under the YCA, § 5011 requires the Bureau of Prisons to carry out the mandate of the court with respect to the offender's segregation and treatment needs. We do not read that language as requiring the judge to make an irrevocable determination of segregation or treatment needs, or as precluding a subsequent judge from redetermining those needs in light of intervening events. 22 At the other extreme, petitioner asserts that the YCA gives the Bureau of Prisons independent statutory authority to determine that a YCA offender will not benefit from YCA treatment. Petitioner believes that the Bureau can make such a determination at any time, whether or not an offender has committed a subsequent offense. We reject this extraordinarily broad interpretation, and any interpretation that would grant the Bureau independent authority to deny an offender the treatment and segregation from adults that a sentencing court mandates. 23 Prison officials do have a significant degree of discretionary authority under the YCA relevant to the treatment of youth offenders. The Bureau is responsible for studying the treatment needs of committed youth offenders, 18 U.S.C. § 5014, and for confining offenders and affording treatment "under such conditions as [the Director of the Bureau] believes best designed for the protection of the public." 18 U.S.C. § 5015(a)(3). It may commit or transfer offenders to any appropriate agency or institution, 18 U.S.C. §§ 5015(a)(2) and (b), and may provide treatment in a wide variety of institutional settings. 18 U.S.C. § 5011. Moreover, it has authority to recommend conditional release and otherwise to consult with the United States Parole Commission in the implementation of the YCA. 18 U.S.C. §§ 5014, 5015(a)(1), 5016, 5017. 24 However, the statute does not give the Bureau any discretion to modify the basic terms of treatment that a judge imposes under §§ 5010 and 5011. When a judge imposes a youth sentence under the YCA, the sentence commits the youth to the custody of the Attorney General "for treatment and supervision pursuant to this chapter." 18 U.S.C. §§ 5010(b) and (c). Section 5011 provides two elements of mandatory treatment: first, youths must undergo treatment in an appropriate institution that will "provide the essential varieties of treatment"; second, "[i]nsofar as practical, such institutions and agencies shall be used only for treatment of committed youth offenders, and such youth offenders shall be segregated from other offenders, and classes of committed youth offenders shall be segregated according to their needs for treatment." These two elements of the program are statutorily mandated, and the discretion of the Bureau is limited to the flexible discharge of its responsibilities within these two broad constraints.5 25 Even if the Bureau asserted only the right to treat YCA offenders as adults in accordance with its Policy Statement, see supra, at 205, this assertion of power is much too broad. The policy would treat any youth offender with an adult consecutive sentence as an adult—even if 15 years of his YCA sentence remained and the adult sentence were only for 1 year. It is unreasonable, indeed callous, to assume that such an offender could not receive any further benefit from YCA treatment. This example underscores the importance of leaving such decisions to the sound discretion of a federal sentencing judge, rather than to prison officials. The fatal defect in petitioner's argument is that it permits prison officials to make a determination—whether a YCA offender will benefit from YCA treatment—that the statute commits to the sentencing judge. IV 26 No provision of the YCA explicitly governs the issue before us. The statute describes the sentencing options available to a judge after conviction but does not elucidate what options would be available after the defendant has been convicted of a second crime while serving his initial sentence. The purposes of the statute, however, revealed in its structure and legislative history, compel the conclusion that a court faced with a choice of sentences for a youth offender still serving a YCA term is not deprived of the option of finding no further benefit in YCA treatment for the remainder of the term. 27 Under § 5010(d), a court sentencing an offender who is serving a youth term may make a "no benefit" finding and then "sentence the youth offender under any other applicable penalty provision." A judge is thus authorized to impose a consecutive adult term, as the second judge did in this case. However, the court also has before it the question whether the offender will benefit from YCA treatment during the remainder of the YCA term. Although § 5010(d) does not expressly authorize a second judge to make a "no benefit" finding with respect to the remainder of an unexpired YCA sentence, we believe that it implicitly authorizes such a determination, as well as the determination that YCA treatment during the consecutive sentence would not be beneficial. It assuredly does not authorize prison officials to make either determination. 28 Our review of the legislative history reveals no explicit discussion of the trial court's options in sentencing a youth who commits a crime while serving a YCA sentence; Congress apparently did not consider this specific problem. But Congress did understand that the original treatment imposed by the sentencing judge might fail, and that protective as well as rehabilitative purposes might justify a lengthy confinement under § 5010(c). In commenting on that section, the House Report states: "This affords opportunity for the sentencing court to avail itself of the provisions of this bill and at the same time insure protection of the public if efforts at rehabilitation fail." H.R.Rep. No. 2979, 81st Cong., 2d Sess., 4 (1950), U.S.Code Cong. & Admin.News 1950, p. 3986.6 29 The history and structure of the YCA discussed above, supra, at 206-210, demonstrate Congress' intent that a court—but not prison officials—may require a youth offender to serve the remainder of a YCA sentence as an adult after the offender has received a consecutive adult term. First, the YCA prescribes certain basic elements of treatment, segregation from adults and individualized rehabilitative programs, as part of a YCA sentence. Second, sponsors of the Act repeatedly stated that its purpose was to prevent youths from becoming recidivists, and to insulate them from the insidious influence of more experienced adult criminals. Housing incorrigible youths with youths who show promise of rehabilitation would not serve this purpose. Third, the decision whether to employ the unique treatment methods of the YCA is exclusively committed to the discretion of the sentencing judge, rather than to prison officials. If segregation of a particular class of youths from adults would be futile, that is a decision to be made by a court, not by prison authorities. 30 Finally, in light of the above, we do not believe that when Congress withdrew from prison officials some of their traditional authority to adjust the conditions of confinement over time, Congress intended that no one exercise that authority. The result would be an inflexible rule requiring, in many cases, the continuation of futile YCA treatment. The only reasonable conclusion is that Congress reposed that authority in the court, the institution that the YCA explicitly invests with the discretion to make the original decision about basic treatment conditions. 31 We find further support for this conclusion from the fact that, in several circumstances, the YCA permits a youth offender initially sentenced under the YCA to be treated as an adult for what would otherwise be the remainder of the YCA sentence.7 For example, the statute permits a court to sentence a defendant to an adult term if he commits an adult offense after receiving a suspended sentence and probation under § 5010(a).8 If respondent had been sentenced initially to probation under § 5010(a) and had been subsequently convicted of criminal assault, the court could have imposed an adult sentence for the original crime, for the assault, or for both, to begin immediately. In fact, respondent committed his second crime while incarcerated. It hardly seems logical to prohibit an immediate modification of respondent's treatment conditions simply because he originally received the harsher sentence of YCA incarceration. 32 Moreover, respondent concedes that the statute permits a judge to impose a concurrent adult sentence on an offender who is serving a YCA term.9 Such an adult sentence would commence at the time that it was imposed and would modify the YCA treatment that the offender would otherwise receive for the remainder of his term. Finally, every offender sentenced under the YCA must be released conditionally two years prior to the termination of his sentence. 18 U.S.C. § 5017. However, if the offender violates the terms of this conditional release by committing a crime, the conditional release may be revoked and an adult sentence may immediately be imposed, notwithstanding the fact that the youth sentence has not yet expired. Respondent concedes as much, since he does not challenge the commencement of his adult term in January 1982, even though two years of his youth sentence will still remain. 33 We therefore conclude that a judge who sentences a youth offender to a consecutive adult term may require that the offender also serve the remainder of his youth sentence as an adult. Only this interpretation can give meaning to both the language and the underlying purposes of the YCA. "[W]e cannot, in the absence of an unmistakable directive, construe the Act in a manner which runs counter to the broad goals which Congress intended it to effectuate." FTC v. Fred Meyer, Inc., 390 U.S. 341, 349, 88 S.Ct. 904, 908, 19 L.Ed.2d 1222 (1968). Accordingly, we hold that a judge may modify the essential terms of treatment of a continuing YCA sentence if he finds that such treatment would not benefit the offender further.10 V 34 The standards that a district judge should apply in determining whether an offender will obtain any further benefit from YCA treatment are no different from the standards applied in imposing a sentence originally. Of course, the judge should consider the fact that the offender has been convicted of another crime. In light of all relevant factors, the court can exercise its sound discretion in determining whether the offender should receive youth or adult treatment for the remainder of his term. The court need not adopt a rigid rule of the type urged by petitioner. Rather, it should make a judgment informed by both the rehabilitative purposes of the YCA and the realistic circumstances of the offender. 35 Applying these principles to the facts before us, we conclude that the second sentencing judge made a sufficient finding that respondent would not benefit from YCA treatment during the remainder of his youth term.11 The judge found that respondent would not benefit "further" under the YCA, and he declined to impose a youth sentence under that Act, imposing instead a consecutive adult sentence.12 In the future, we expect that judges will eliminate interpretive difficulties by making an explicit "no benefit" finding with respect to the remainder of the YCA sentence.13 36 In conclusion, we are convinced that Congress did not intend that a person who commits serious crimes while serving a YCA sentence should automatically receive treatment that has proved futile. On the other hand, Congress carefully designed this statute to require a sentencing judge, rather than the Bureau of Prisons, to evaluate whether the basic elements of treatment segregation from adults and individualized programs—are appropriate and consistent with YCA policies over time. Our interpretation comports with the overriding legislative purpose that "once a person [is] committed for treatment under the Act, the execution of sentence [is] to fit the person, not the crime." Dorszynski, 418 U.S., at 434, 94 S.Ct., at 3048.14 37 We reverse the judgment of the Court of Appeals and remand the case for proceedings consistent with this opinion. 38 It is so ordered. 39 Justice POWELL, concurring in the judgment. 40 The only question presented in this case is whether an offender, the respondent, serving a sentence under the Federal Youth Corrections Act (YCA), 18 U.S.C. § 5005 et seq., and thereafter sentenced to a consecutive term of imprisonment as an adult, must nevertheless be separated from other adult offenders for the remainder of his sentence under that Act. I agree with the Court that the answer to this question must be in the negative. I write separately because it seems to me that the Court's opinion, in addressing broadly the authority of the Director of the Bureau of Prisons (the Director), may be read as unnecessarily curtailing his authority and discretion to act in other cases. 41 It was a District Court that imposed the consecutive adult term on respondent, but it was the Director who made the decision to treat respondent as an adult prisoner no longer entitled to be segregated from adult offenders. I agree with the Court as to the authority of the District Court to impose the consecutive adult term of imprisonment. I confine this concurrence to the issue of authority of the Director. 42 Respondent pleaded guilty to second-degree murder in 1974. The court sentenced him to 10 years of custody under the YCA. In 1975 respondent was convicted of assaulting a federal guard with a dangerous weapon. He was sentenced to a consecutive 10-year term. The District Court found "that the [respondent] will not benefit any further under the provisions of the Youth Offenders Act and decline[d] to sentence under said act." After it received a report from the Bureau of Prisons, however, the court took two additional actions. It reduced respondent's sentence to five and one-half years, and it recommended—but did not order—that respondent "be transferred from [the] Federal Youth Center . . . to a facility providing greater security." In 1977 respondent again was convicted of assaulting a federal guard. He again was given consecutive adult sentencing. Two courts thus certified that respondent had shown an incorrigibility and capacity for violence that warrants adult treatment. 43 In my view, certainly under these circumstances, the Director had the authority to treat the respondent as an adult offender. The YCA directs that youth offenders are to "undergo treatment in institutions of maximum security, medium security, or minimum security types. . . ." 18 U.S.C. § 5011. " '[T]reatment' means corrective and preventive guidance and training designed to protect the public by correcting the antisocial tendencies of youth offenders. . . ." § 5006(f). The Director, inter alia, may "order the committed youth offender confined and afforded treatment under such conditions as he believes best designed for the protection of the public." § 5015(a)(3) (emphasis added). "The Director may transfer at any time a committed youth offender from one agency or institution to any other agency or institution." § 5015(b) (emphasis added). "Insofar as practical, . . . youth offenders shall be segregated from other offenders. . . ." § 5011 (emphasis added). 44 Thus, the express language of YCA vests broad discretion in the Director. It contains no mandatory directions that youth segregation must continue indefinitely no matter how clearly appropriate adult treatment may be. The statutory emphasis instead is on flexibility and individualized treatment. See 18 U.S.C. §§ 5005, 5014, 5016, 5017, 5018, and 5020. The YCA does require youth offenders to be separated from adult offenders, but this command is qualified by the phrase "[i]nsofar as practical." We need not in this case consider the limits on the discretion thus conferred. This is an easy case in view of respondent's convictions as an adult offender and the findings of the federal courts. In these circumstances the Director plainly had the authority—indeed the duty—to transfer respondent from the Federal Youth Center to a "facility providing greater security." We properly defer to the Director's judgment that continued segregation from adult offenders is no longer "practical" under such circumstances. Even in the absence of subsequent felony convictions, there could be occasions when, because of a youth offender's incorrigibility and threat to the safety of others, it would be highly impractical to continue his segregation in a youth center. As we are not confronted with such a situation in this case, I would limit our decision to the record before us and defer to another day a general discussion of the Director's authority. 45 Justice STEVENS, with whom Justice BRENNAN and Justice O'CONNOR join, dissenting. 46 At common law a sentence could be amended during the term in which it was imposed subject to the limitation that "a punishment already partly suffered be not increased."1 "The distinction that the court during the same term may amend a sentence so as to mitigate the punishment, but not so as to increase it," United States v. Benz, 282 U.S. 304, 307, 51 S.Ct. 113, 114, 75 L.Ed. 354, has been recognized by this Court over and over again.2 Whether the well-settled rule prohibiting judges from increasing the severity of a sentence after it has become final is constitutionally mandated,3 it is unquestionably the sort of rule that judges may not disregard without express authorization from Congress.4 47 That rule requires a firm rejection of the argument that a second sentencing judge has power to convert an unexpired YCA sentence into an adult sentence. For there can be no question about the fact that an adult sentence is more severe than a YCA sentence.5 Nor can we "assume Congress to have intended such a departure from well-established doctrine without a clear expression to disavow it." Dorszynski v. United States, 418 U.S. 424, 441, 94 S.Ct. 3042, 3052, 41 L.Ed.2d 855. It is undisputed that the Youth Corrections Act contains no such clear expression of congressional intent. Indeed, the Court's opinion repeatedly confirms this proposition.6 The Court's novel holding is supported by nothing more than inferences drawn from the "history and structure of the YCA." See ante, at 214. Manifestly, such inferences are insufficient to justify a judicial rewriting of what "has been accurately described as the most comprehensive federal statute concerned with sentencing." Dorszynski, supra, at 432, 94 S.Ct. at 3047. 48 The Court's first argument rests on the premise that Congress did not intend either that corrigible youth offenders be housed with incorrigible youth offenders or that futile YCA treatment be continued. The Court reasons that continued YCA treatment is in derogation of such congressional intent whenever a youth offender, while serving his YCA sentence, commits another crime sufficiently serious to convince the second sentencing judge that the youth will no longer benefit from YCA treatment. Ante, at 214-215. All of this may well be true, but it does not follow that the second sentencing judge may impose a consecutive adult sentence and also confine the offender as an adult under the unexpired YCA sentence. A much less drastic solution will accomplish the objectives ascribed to Congress. The second judge simply may impose a concurrent adult sentence and thereby end the offender's YCA treatment.7 Moreover, even if, as in this case, the second sentencing judge imposes a consecutive rather than a concurrent sentence, prison officials nonetheless can effectuate these objectives by exercising their authority to terminate the YCA confinement and allow the consecutive adult sentence to commence. See 18 U.S.C. § 5017. It is therefore clear that the Court's premise does not support its conclusion that Congress must have intended that the second sentencing judge may modify the first sentence by increasing its severity.8 49 The Court's second argument is no better. The Court notes that, "in several circumstances, the YCA permits a youth offender initially sentenced under the YCA to be treated as an adult for what would otherwise be the remainder of the YCA sentence." Ante, at 215. The Court's examples are set forth in the margin.9 I do not disagree with the Court that the imposition of a YCA sentence does not entitle an offender to YCA treatment for the full length of that sentence no matter what crimes he commits in the interim, or that respondent could have been subjected to immediate adult confinement in each of the Court's examples. I do not agree, however, that a second judge may impose adult treatment on an offender who continues to be incarcerated not on the basis of a subsequent adult sentence but on the basis of the original YCA sentence. None of the Court's examples poses that situation; hence there is no reason to suppose that Congress intended that any authority, even a court, may increase the severity of a sentence after that sentence has become final. In fact, as the Court points out in a footnote, the only statutory authorization for a judicial modification of a YCA sentence permits "a judge [to] reduce the severity of the terms of commitment in light of changed circumstances." Ante, at 215, n. 7 (emphasis in original); see 18 U.S.C. §§ 5021, 5023. 50 There is, therefore, nothing in the text, history, or structure of the Youth Corrections Act that supports the Court's holding that a judge may increase the severity of a YCA sentence after it has become final.10 Even apart from the constitutional problem with such a holding, see n. 3, supra, this absence of statutory support is fatal.11 Not only did Congress not intend the result reached by the Court today, there is good reason to believe that Congress intended just the opposite. 51 In enacting the Youth Corrections Act, Congress recognized that a YCA sentence of a given number of years is qualitatively less severe than an adult sentence of equal length.12 Indeed, § 5010(b) authorizes a district court to impose a longer YCA sentence (up to six years) than would be authorized if the offender were sentenced as an adult. The federal courts unanimously have upheld § 5010(b) against constitutional challenges on the reasoning early expressed by THE CHIEF JUSTICE when a Circuit Judge and often quoted thereafter: 52 "[T]he basic theory of that Act is rehabilitative and in a sense this rehabilitation may be regarded as comprising the quid pro quo for a longer confinement but under different conditions and terms than a defendant would undergo in an ordinary prison. . . . [T]he Youth Corrections Act 'provides for and affords youthful offenders, in the discretion of the judge, not heavier penalties and punishment than are imposed upon adult offenders, but the opportunity to escape from the physical and psychological shocks and traumas attendant upon serving an ordinary penal sentence while obtaining the benefits of corrective treatment, looking to rehabilitation and social redemption and restoration.' " Carter v. United States, 113 U.S.App.D.C. 123, 125, 306 F.2d 283, 285 (1962) (quoting Cunningham v. United States, 256 F.2d 467, 472 (CA5 1958)).13 53 It is of no consequence that respondent was sentenced not under § 5010(b), but under § 5010(c), for the same quid pro quo theory that justifies longer YCA terms than maximum adult terms for a given offense also justifies YCA terms within the statutory adult maximum but longer than an adult would generally receive. See Watts v. Hadden, 651 F.2d 1354, 1365 (CA10 1981); United States ex rel. Dancy v. Arnold, 572 F.2d 107, 111 (CA3 1978). It is no coincidence that the Youth Corrections Act vests broad authority in the district judge to impose lengthy YCA sentences and also vests broad authority in prison officials to order early releases of youth offenders from their YCA sentences.14 The proponents of the Youth Corrections Act repeatedly emphasized that prison officials must be given sufficient time to rehabilitate youth offenders and sufficient authority to release rehabilitated offenders from their custodial sentences.15 As the then Director of the Bureau of Prisons explained before the Senate Subcommittee studying the proposed Youth Corrections Act in 1949, the imposition of ordinary adult-length sentences on youth offenders was completely unrelated to the rehabilitative effort; the sentences were either far too long or far too short.16 The promises of treatment and of early release justified the imposition of longer YCA sentences. 54 If a second sentencing judge is able to convert an unexpired YCA sentence into an adult sentence, the quid pro quo vanishes. The youth offender who is sentenced to a longer term of confinement when sentenced under the YCA than if he were sentenced as an adult may end up, as respondent will under the Court's holding, serving that lengthier sentence under the adult conditions he paid a price to avoid. Furthermore, he is not entitled for the duration of that sentence to the good-time allowances available to offenders sentenced as adults.17 The humanitarian objectives of the Youth Corrections Act do not justify fundamental unfairness.18 55 If the original sentencing judge had known that a subsequent adult sentence could result in expiration of YCA treatment but not of the YCA sentence, he might well have discounted the length of the YCA sentence to reflect this possibility.19 Moreover, if respondent had known of this possibility, he might have elected to stand trial rather than to plead guilty.20 Speculation of this kind21 would be unnecessary if the Court declined to enlarge upon the statute that Congress has written. If an amendment to the statute is needed to deal with a problem that Congress did not foresee, it is Congress—not this Court—that must perform that task. 56 I do not purport to know whether YCA treatment is effective for youthful offenders in general, or would serve any useful purpose for this particular offender.22 No such question is relevant to the legal issue raised by this case. The only question presented is whether a federal judge confronted with the task of sentencing an inmate for an offense committed while he is serving a sentence for an earlier crime may not only impose the punishment authorized by law for the later offense but may also take it upon himself to enhance the earlier sentence as well. The answer to that question seems so obvious to me that I shall not further belabor it. 57 I respectfully dissent. 1 In this case, the United States Court of Appeals for the Seventh Circuit gave an affirmative answer to the question presented. See 642 F.2d 1077 (1981). The United States Court of Appeals for the Third Circuit, Thompson v. Carlson, 624 F.2d 415 (1980), gave a negative answer, holding that a judge's determination that the offender would not benefit from YCA treatment warrants treating him immediately as an adult. The United States Court of Appeals for the Fourth Circuit, Outing v. Bell, 632 F.2d 1144 (1980), cert. denied sub nom. Outing v. Smith, 450 U.S. 1001, 101 S.Ct. 1710, 68 L.Ed.2d 203 (1981), also gave a negative answer, holding that the policy of prison officials warrants treating him as an adult. 2 Respondent asserts that he has never been segregated from non-YCA prisoners nor received special YCA treatment. Although petitioner disputes this assertion, the record of frequent transfers lends some credence to respondent's claim. Given our disposition of this case, we need not address this issue. 3 Under § 5010(b) and § 5017(c), a court is authorized to sentence an offender to an indeterminate YCA term of six years, even if the adult maximum sentence would be a lesser term. Under § 5010(c) and § 5017(d), if a court finds that the offender may not be able to derive maximum benefit from YCA treatment within six years, it may impose a YCA term of any length authorized by law for the crimes of which the offender is convicted. Respondent was initially sentenced under the latter provisions to a 10-year term; the maximum adult penalty for his crime (second-degree murder) was life imprisonment. 4 Section 5011 provides in full: "Committed youth offenders not conditionally released shall undergo treatment in institutions of maximum security, medium security, or minimum security types, including training schools, hospitals, farms, forestry and other camps, and other agencies that will provide the essential varieties of treatment. The Director shall from time to time designate, set aside, and adapt institutions and agencies under the control of the Department of Justice for treatment. Insofar as practical, such institutions and agencies shall be used only for treatment of committed youth offenders, and such youth offenders shall be segregated from other offenders, and classes of committed youth offenders shall be segregated according to their needs for treatment." 5 Although the Courts of Appeals consistently have rejected the argument that the Bureau of Prisons may ignore the obligations under § 5011, they have not agreed on the degree of the flexibility the Bureau possesses in complying with the segregation requirement. This conflict arises from the requirement in § 5011 that certain obligations be discharged "[i]nsofar as practical." See n. 4, supra. See, e.g., Watts v. Hadden, 651 F.2d 1354 (CA10 1981); Outing v. Bell, 632 F.2d 1144 (CA4 1980), cert. denied sub nom. Outing v. Smith, 450 U.S. 1001, 101 S.Ct. 1710, 68 L.Ed.2d 203 (1981); United States ex rel. Dancy v. Arnold, 572 F.2d 107 (CA3 1978); Harvin v. United States, 144 U.S.App.D.C. 199, 445 F.2d 675 (en banc), cert. denied, 404 U.S. 943, 92 S.Ct. 292, 30 L.Ed.2d 257 (1971); Brown v. Carlson, 431 F.Supp. 755 (WD Wis.1977); Johnson v. Bell, 487 F.Supp. 977 (ED Mich.1980). We need not address the issue of the scope of the practicality exception in this case because petitioner's reliance on it is misplaced. Petitioner argues that because some "hardened" youths may be serving YCA sentences, it is "impractical" to segregate them from adults. The sentencing courts, however, determined that these "hardened" youths would benefit from YCA treatment and consequently should be segregated from adults and integrated with other youth offenders. Petitioner really questions the wisdom, not the practicality, of that determination. 6 The same explanation was offered at the Senate hearings by the Chairman of the Committee that drafted the bill. 1949 Senate Hearings, at 62 (statement of Chief Judge Phillips). See also id., at 13 (statement of Chief Judge Laws) (section is to be used "if the judge feels that a youth offender convicted of an offense calling for a long term under existing statutes might not respond to treatment within 6 years or that so short a term might have an adverse effect on enforcement of the law. . ."). 7 In other circumstances, the YCA contemplates reevaluation of the initial sentence—a judge may reduce the severity of the terms of commitment in light of changed circumstances. The YCA does not disturb "the power of any court to suspend the imposition or execution of any sentence and place a youth offender on probation." 18 U.S.C. § 5023. The YCA also permits a court to unconditionally discharge a youth on probation prior to the expiration of the probationary period and to issue a certificate to that effect. 18 U.S.C. § 5021. See Thompson v. Carlson, 624 F.2d, at 421. 8 By virtue of § 5023(a), the YCA incorporates 18 U.S.C. § 3653. Under the latter section, if a court has suspended the imposition of sentence and placed an offender on probation, the court, after revoking probation, may impose any sentence that it might have imposed originally. See generally Durst v. United States, 434 U.S. 542, 551, 98 S.Ct. 849, 854, 55 L.Ed.2d 14 (1978) (§ 5023(a) "preserve[s] to sentencing judges their powers under the general probation statute when sentencing youth offenders to probation under § 5010(a)"). Section 5010(a) also authorizes the court to impose a YCA sentence but suspend its execution. If such an offender commits a crime while on probation, the court may require him to begin serving the YCA sentence immediately, or the court may impose an adult sentence for the second crime. 9 We have no doubt that the second sentencing judge could have modified respondent's YCA treatment terms by imposing a concurrent sentence. The judge did not, however, avail himself of that option. It would be anomalous to permit a concurrent sentence to modify the terms of the remainder of a YCA sentence but not to permit a consecutive term to have that effect, since a concurrent sentence is traditionally imposed as a less severe sanction than a consecutive sentence. See National Advisory Commission on Criminal Standards and Goals, Sentencing Standard 5.6 (1973); A. Campbell, Law of Sentencing § 76 (1978). Moreover, a consecutive sentence may be the preferable form of sentence for an offense committed while serving a sentence for a prior offense. See U.S. Dept. of Justice, Uniform Law Commissioners' Model Sentencing and Corrections Act § 3-107(c) (1979). We see no relevant difference in the fact that concurrent sentences traditionally take effect immediately. As we hold today, a judge imposing a consecutive adult sentence may find that continued YCA treatment during the unexpired term would be futile, and his finding may take effect immediately. In either case, the YCA permits a judge to effectuate his finding with respect to whether future YCA treatment would be beneficial. Of course, a concurrent sentence of a given length will result in a shorter ultimate sentence than a consecutive sentence of that length; but a judge wishing to impose a longer ultimate sentence may simply increase the length of the concurrent sentence accordingly. 10 The unusual characteristics of a YCA sentence answer respondent's complaint that a second judge cannot "revoke" the original sentence. To be sure, a judge's sentence is traditionally left undisturbed, even when subsequent events indicate that the original sentence was unduly lenient. Such a sentence cannot be "revoked," i.e., a second judge cannot increase its length. On the other hand, tradition has vested wide discretion in prison officials to tailor conditions of confinement to the security requirements and treatment needs of the offender. A prison official's modification of such conditions because of an offender's misconduct would not be considered a "revocation" of the initial sentence. It is simply an appropriate recognition of the offender's changed circumstances. We think that a judge's modification is no different as a matter of policy. For the same reasons, we do not think that the second judge's modification of the conditions of the YCA sentence in light of the offender's changed circumstances is an impermissible review of the first judge's discretionary decision. The dissenting opinion asserts that our interpretation of congressional intent is inconsistent with the common-law rule that " 'a punishment already partly suffered be not increased.' " Post, at 223. That common-law rule simply does not apply when Congress has provided a court with the power to modify a sentence in light of changed circumstances. For example, a court may impose a suspended sentence and probation, under the general probation statute or under the YCA. 18 U.S.C. § 3651 et seq., § 5010. If the defendant violates the terms of his probation, the court may "increase" the punishment by requiring him to serve the initial sentence. Here, the statute permits a judge to modify the conditions of a YCA sentence if the offender is convicted of a subsequent adult crime and if further YCA treatment would be futile. In each case, the sentencing statute invests the court with the power to modify conditions in light of the subsequent offense. The dissent reviews selective portions of the legislative history but never addresses a critical point. When Congress decided to invest the court with unusual authority over treatment conditions and to deny such authority to prison officials, it did not intend that no institution would have the authority to modify treatment conditions which become futile over time. Justice STEVENS candidly admits that the interpretation he recommends may not "serve any useful purpose for this particular offender." Post, at 233-234. We do not believe that Congress was so shortsighted. In examining the sentencing options that the YCA grants to federal judges, we refuse to close our eyes to Congress' unmistakable rehabilitative intent. 11 Apparently, the Court of Appeals believed that a rehabilitative purpose may have existed here. However, given the facts of this case, any such belief is sheer speculation. After all, the second judge found that respondent would not benefit "further" from YCA treatment. In future cases, we emphasize, the sentencing judge has the responsibility for determining whether an offender would derive any rehabilitative benefit from receiving continued YCA treatment prior to serving an adult sentence. 12 The judge's recommendation that respondent be transferred "to a facility providing greater security" is additional evidence that the judge did not believe that respondent would derive further benefit from YCA treatment. 13 We need not address the question whether a judge may modify the basic treatment terms of a youth sentence whose length exceeds the maximum penalty authorized by law for an adult, since respondent's YCA sentence was imposed under § 5010(c), not § 5010(b). We recognize that if the basic treatment elements of a YCA sentence under § 5010(b) are modified at such a time that a youth effectively serves an adult sentence of greater length than an adult could receive, there would be a serious issue whether such a sentence is authorized by any statute and, if so, whether it violates the Equal Protection Clause. Cf. Carter v. United States, 113 U.S.App.D.C. 123, 125, 306 F.2d 283, 285 (1962) (longer term under YCA constitutional, "essentially because such confinement cannot be equated with incarceration in an ordinary prison") (Burger, J.). We assume that district judges will keep these considerations in mind when deciding whether to modify YCA treatment terms of a sentence imposed under § 5010(b). The dissent insists that the quid pro quo argument applies even to a sentence under § 5010(c), because such a sentence is "longer than an adult would generally receive." Post, at 231. Whether respondent's sentence was longer than he would have received as an adult is speculation—as is the suggestion that respondent might not have pleaded guilty had he known that the YCA conditions of his unexpired term could be converted to adult conditions if he were later to commit an adult crime and if the second judge were to find that further YCA treatment would be futile. 14 Respondent argues that a statutory entitlement to segregation and treatment exists, and that a judge's subsequent modification of those conditions is a deprivation of due process and equal protection and a violation of double jeopardy. Because the lower court had no occasion to address these issues, 642 F.2d, at 1079, n. 4, we will not address them in the first instance. The dissenting opinion implies that our interpretation of the statute may violate the Double Jeopardy Clause. Post, at 224, n. 3. Although the issue is not properly before us, the suggestion deserves a response. Congress intended that a YCA sentence contain within it the possibility that, if the offender commits a subsequent offense, the court may modify the YCA treatment terms. Such a scheme hardly constitutes multiple punishment, since the offender has, by his own actions, triggered the condition that permits appropriate modification of the terms of confinement. After all, the imposition of confinement when an offender violates his term of probation has never been considered to raise a serious double jeopardy problem. See United States v. DiFrancesco, 449 U.S. 117, 137, 101 S.Ct. 426, 437, 66 L.Ed.2d 328 (1980); id., at 148, 101 S.Ct., at 443 (no double jeopardy problem because defendant is on notice that the sentence is conditional, and because "revocation of parole or probation only results from a change in circumstance subsequent to the grant of parole or probation") (BRENNAN, J., with whom WHITE, MARSHALL, and STEVENS, JJ., joined, dissenting). See also Ex parte Lange, 18 Wall. 163, 168, 21 L.Ed. 872 (1874) (Double Jeopardy Clause offers "complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offence") (emphasis added). 1 "As a general practice, the sentence, when imposed by a court of record, is within the power of the court during the session in which it is entered, and may be amended at any time during such session, provided a punishment already partly suffered be not increased." F. Wharton, Criminal Pleading and Practice § 913, p. 641 (9th ed. 1889) (emphasis added) (quoted in United States v. Benz, 282 U.S. 304, 307, 51 S.Ct. 113, 114, 75 L.Ed. 354). 2 See, e. g., Whalen v. United States, 445 U.S. 684, 703, 100 S.Ct. 1432, 1444, 63 L.Ed.2d 715 (REHNQUIST, J., dissenting); North Carolina v. Pearce, 395 U.S. 711, 730-731, 89 S.Ct. 2072, 2091, 23 L.Ed.2d 656 (DOUGLAS, J., concurring); id., at 747, 89 S.Ct., at 2086 (HARLAN, J., concurring in part and dissenting in part); Reid v. Covert, 354 U.S. 1, 37, n. 68, 77 S.Ct. 1222, 1241 n. 68, 1 L.Ed.2d 1148; Roberts v. United States, 320 U.S. 264, 265-266, 64 S.Ct. 113, 114-15, 88 L.Ed. 41. 3 "If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence." Ex parte Lange, 18 Wall. 163, 168, 21 L.Ed. 872. Although United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328, purports to confine Ex parte Lange and United States v. Benz, supra, to their specific contexts, see 449 U.S., at 139, 101 S.Ct., at 438, the Court's holding in DiFrancesco is limited to the situation in which Congress has expressly authorized an increase of sentence after the initial sentence has been set aside on direct appeal. It is conceded in this case that Congress did not expressly authorize the second sentencing judge to increase the severity of the unexpired YCA sentence. It is perplexing, but noteworthy, that the Court's opinion, ante, at 220-221, n. 14, leaves the Court of Appeals free on remand to declare unconstitutional the Court's construction of the Youth Corrections Act. 4 This case closely parallels Roberts v. United States, supra. After pleading guilty to a federal offense, Roberts was sentenced to pay a $250 fine and to serve two years in prison. Pursuant to authority under the federal probation statute, the District Court suspended execution of the sentence conditioned upon payment of the fine and ordered Roberts' release on probation for a 5-year period. Four years later, the court after a hearing revoked the probation, set aside the original sentence of two years, and imposed a new sentence of three years. The Court of Appeals affirmed. On petition for certiorari, Roberts argued that the probation statute did not authorize imposition of an increased sentence after revocation of a suspended original sentence and, if not so construed, the statute was unconstitutional. The Court granted certiorari and reversed on statutory grounds, not reaching the constitutional question. "If the authority exists in federal courts to suspend or to increase a sentence fixed by a valid judgment, it must be derived from the Probation Act. The government concedes that federal courts had no such power prior to passage of that Act. See Ex parte United States, 242 U.S. 27 [37 S.Ct. 72, 61 L.Ed. 129]; United States v. Mayer, 235 U.S. 55 [35 S.Ct. 16, 59 L.Ed. 129]; Ex parte Lange, 18 Wall. 163 [21 L.Ed. 872]; United States v. Benz, 282 U.S. 304 [51 S.Ct. 113, 75 L.Ed. 354]." 320 U.S., at 265-266, 64 S.Ct., at 114. The Court concluded that, despite language in the statute that "the court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed," the Probation Act did not authorize such an increased sentence. The Court held that "having exercised its discretion by sentencing an offender to a definite term of imprisonment in advance of probation, a court may not later upon revocation of probation set aside that sentence and increase the term of imprisonment." Id., at 272-273, 64 S.Ct., at 117-118. Thus, Roberts recognizes the critical distinction between changing a sentence after it has been imposed and postponing imposition of a sentence. The Court today not only ignores this distinction, see ante, at 217-218, n. 10, p. 220-221, n. 14, but does not even cite Roberts. 5 The Court does not deny that an adult sentence of a given number of years is more severe than a YCA sentence for the same number of years. As THE CHIEF JUSTICE, then a Circuit Judge, stated for the United States Court of Appeals for the District of Columbia Circuit, YCA "confinement cannot be equated with incarceration in an ordinary prison." Carter v. United States, 113 U.S.App.D.C. 123, 125, 306 F.2d 283, 285 (1962). See United States v. McDonald, 611 F.2d 1291, 1294-1295 (CA9 1980); Rogers v. United States, 326 F.2d 56, 57 (CA10 1963); 18 U.S.C. § 5011; H.R.Rep. No. 2979, 81st Cong., 2d Sess., 3 (1950). 6 The Court admits that "[n]o provision of the YCA explicitly governs the issue before us," ante, at 213; that "[t]he statute describes the sentencing options available to a judge after conviction but does not elucidate what options would be available after the defendant has been convicted of a second crime while serving his initial sentence," ibid.; that "§ 5010(d) does not expressly authorize a second judge to make a 'no benefit' finding with respect to the remainder of an unexpired YCA sentence," ibid.; and that "the legislative history reveals no explicit discussion of the trial court's options in sentencing a youth who commits a crime while serving a YCA sentence; Congress apparently did not consider this specific problem," ante, at 214. Petitioner agrees: "Nothing in the language of the YCA is specifically directed to the problem of an offender who, while serving a YCA sentence, commits a crime and receives a consecutive term of imprisonment as an adult, thus acquiring a dual status as both an adult offender and a YCA offender. The legislative history reveals that Congress, in its optimism about the new approach, did not consider or provide for the situation in which a youth offender would commit a serious crime while rehabilitation was underway." Brief for Petitioner 12-13. Indeed, petitioner urges the Court to defer to the Bureau of Prisons' interpretation of the Youth Corrections Act, see Bureau of Prisons Policy Statement No. 5215.2 (Dec. 12, 1978), an argument the Court soundly rejects. Ante, at 212-213. I agree with the Court that the Bureau of Prisons does not have power under the Youth Corrections Act to terminate YCA treatment. 7 Petitioner objects to that alternative solution because, with consecutive sentences, the judge can impose a harsher sentence. See Tr. of Oral Arg. 14-15, 48. I am confident, however, that the maximum sentences authorized for serious crimes (or even less serious crimes) are sufficiently high to satisfy this objection. Title 18 U.S.C. § 111, under which respondent in 1975 was convicted and sentenced to 51/2 years' imprisonment, authorizes as a penalty a fine of not more than $10,000 or imprisonment of not more than 10 years, or both. Even if these statutory maximums were inadequate, as this Court stated in response to a youth offender's claim that his sentence was too harsh, " 'the remedy must be afforded by act of Congress, not by judicial legislation under the guise of construction,' [Blockburger v. United States, 284 U.S. 299, 305, 52 S.Ct. 180, 182, 76 L.Ed. 306], since '[w]hatever views may be entertained regarding severity of punishment . . . [t]hese are peculiarly questions of legislative policy.' [Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405]." Dorszynski v. United States, 418 U.S. 424, 442, 94 S.Ct. 3042, 3052, 41 L.Ed.2d 855. 8 Indeed, the Court concedes the practicality point: "We see no relevant difference in the fact that concurrent sentences traditionally take effect immediately. As we hold today, a judge imposing a consecutive adult sentence may find that continued YCA treatment during the unexpired term would be futile, and his finding may take effect immediately. In either case, the YCA permits a judge to effectuate his finding with respect to whether future YCA treatment would be beneficial. Of course, a concurrent sentence of a given length will result in a shorter ultimate sentence than a consecutive sentence of that length; but a judge wishing to impose a longer ultimate sentence may simply increase the length of the concurrent sentence accordingly." Ante, at 216-217, n. 9 (emphasis in original). 9 "For example, the statute permits a court to sentence a defendant to an adult term if he commits an adult offense after receiving a suspended sentence and probation under § 5010(a). If respondent had been sentenced initially to probation under § 5010(a) and had been subsequently convicted of criminal assault, the court could have imposed an adult sentence for the original crime, for the assault, or for both, to begin immediately.. . . "Moreover, respondent concedes that the statute permits a judge to impose a concurrent adult sentence on an offender who is serving a YCA term. Such an adult sentence would commence at the time that it was imposed and would modify the YCA treatment that the offender would otherwise receive for the remainder of his term. Finally, every offender sentenced under the YCA must be released conditionally two years prior to the termination of his sentence. 18 U.S.C. § 5017. However, if the offender violates the terms of this conditional release by committing a crime, the conditional release may be revoked and an adult sentence may immediately be imposed, notwithstanding the fact that the youth sentence has not yet expired." Ante, at 215-217 (footnotes omitted and emphasis in original). 10 Writing for the Court of Appeals, Judge Swygert made the point in this way: "The Warden asks us to read into this Act which has as its ultimate purpose rehabilitation, a highly unusual sentencing option that would permit one judge to reevaluate another judge's YCA sentence and impose in its place a traditional adult sentence. There is 'not a word' in the statute or its legislative history 'about augmenting sentences or about having a second judge in any way change them.' [Thompson v. Carlson,] 624 F.2d 415, 426 (3d Cir. 1980) (Adams, J., dissenting). Such a reading is contrary to the letter and the spirit of the act, and the cited provisions do not convince us otherwise." 642 F.2d 1077, 1081 (CA7 1981). 11 The Court asserts that the common-law rule that a sentence may not be increased after it has become final "simply does not apply when Congress has provided a court with the power to modify a sentence in light of changed circumstances. . . . Here, the statute permits a judge to modify the conditions of a YCA sentence if the offender is convicted of a subsequent adult crime and if further YCA treatment would be futile." Ante, at 218, n. 10. Of course, whether Congress expressed an intent to depart from the common-law rule is the critical question. The Court and petitioner concede that neither the statute nor the legislative history evinces such an intent because Congress did not contemplate the situation. See n. 6, supra. Nor do the Court's historical and structural arguments support the result the Court reaches. See discussion, supra at 226-228 and this page. The Court simply imposes the result it thinks makes the most sense. While such interstitial lawmaking may be appropriate in some circumstances, it surely is not warranted when the Court is bound to follow the common-law rule absent affirmative evidence that Congress intended to depart from that rule. 12 See n. 5, supra. 13 Accord, e. g., Abernathy v. United States, 418 F.2d 288, 290 (CA5 1969); Johnson v. United States, 374 F.2d 966, 967 (CA4 1967); Brisco v. United States, 368 F.2d 214, 215 (CA3 1966); Kotz v. United States, 353 F.2d 312, 314 (CA8 1965); Eller v. United States, 327 F.2d 639 (CA9 1964); Rogers v. United States, 326 F.2d 56, 56-57 (CA10 1963). Cf. United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1123-1124 (CA2 1974) (New York law), cert. denied, 421 U.S. 921, 95 S.Ct. 1587, 43 L.Ed.2d 789; United States ex rel. Wilson v. Coughlin, 472 F.2d 100, 102-103 (CA7 1973) (Illinois law). 14 See 18 U.S.C. §§ 5010, 5017. 15 See, e. g., Correctional System for Youthful Offenders: Hearings on S. 1114 and S. 2609 before a Subcommittee of the Senate Committee on the Judiciary, 81st Cong., 1st Sess., 22, 24, 27 (statement of James V. Bennett, Director, Bureau of Prisons), 33 (statement of Curtis Shears, Chairman, Youth Participation Committee, D. C. Department of American Legion), 53-55 (statement of Carroll Hincks, U. S. District Judge), 62, 66 (statement of Orie L. Phillips, U. S. Circuit Judge) (1949); Federal Corrections Act and Improvement in Parole: Hearings on H.R. 2139 and H.R. 2140 before Subcommittee No. 3 of the House Committee on the Judiciary, 78th Cong., 1st Sess., 74-75 (extension of statement of Carroll C. Hincks), 138-139 (Reference Notes on Federal Corrections Act, submitted by James V. Bennett) (1943). 16 "From the hundreds of cases of this type which have come across my desk I have formed the conclusion that in the task of correcting the offender the crucial element is that of time. Attitudes, habits, interests, standards cannot be changed overnight. Training in work habits and skills requires time. Once the individual has received the maximum benefit from the institutional program, however, it is just as important that his release to the community be effected promptly. In the case of each person confined there comes a period when he has his best prospects of making good in the community. His release should occur at that time. If he is released earlier he will not be ready for the task of establishing himself; if later, he may have become bitter, unsure of himself, or jittery like the athlete who is overtrained. "Rarely does a day go by in one of our institutions for younger offenders without a youth being received whose sentence is either far too long or far too short, if the institution is to carry out its objective of correctional treatment. "I have seen thousands of men rightly sent to prison but wrongly for periods so short that their imprisonment was only an expense to the Government and accomplished little so far as the rehabilitation of the man or the protection of the community was concerned. I have seen men sent to prison for so long that all efforts in their behalf were frustrated." Hearings on S. 1114 and S. 2609, supra n. 15, at 27 (statement of James V. Bennett). 17 See Staudmier v. United States, 496 F.2d 1191, 1192 (CA10 1974); Hale v. United States, 307 F.Supp. 345, 346 (WD Okla. 1970); Foote v. United States, 306 F.Supp. 627, 628-629 (Nev. 1969). 18 I had thought that Justice FORTAS, writing so eloquently for the Court in In re Gault, 387 U.S. 1, 12-31, 87 S.Ct. 1428, 1435-45, 18 L.Ed.2d 527, with specific reference to the juvenile justice system, had settled that point. 19 Bureau of Prisons Policy Statement No. 5215.2 (Dec. 12, 1978), which purports to exclude from YCA treatment YCA-sentenced offenders who are also sentenced to a concurrent or consecutive adult term, was promulgated four and one-half years after respondent was sentenced under the Youth Corrections Act. 20 Respondent pleaded guilty to the offense for which he was sentenced to 10 years' confinement under the Youth Corrections Act. Ante, at 203. For challenges against such guilty pleas on the ground that the defendant was not fully apprised of the consequences of being sentenced under the Youth Corrections Act, see, e. g., Marvel v. United States, 380 U.S. 262, 85 S.Ct. 953, 13 L.Ed.2d 960; Caldwell v. United States, 435 F.2d 1079 (CA10 1970); James v. United States, 388 F.2d 453 (CA5 1968); Freeman v. United States, 350 F.2d 940 (CA9 1965); Chapin v. United States, 341 F.2d 900 (CA10 1965); Pilkington v. United States, 315 F.2d 204 (CA4 1963); Carter v. United States, 113 U.S.App.D.C. 123, 306 F.2d 283 (1962). 21 Indeed, the Court of Appeals suggested that even the second and third sentencing judges might have imposed different sentences had they known that a no-benefit finding would take effect immediately rather than when the consecutive adult sentence commenced. See 642 F.2d, at 1082; see also ante, at 219 (noting the "interpretive difficulties" of the subsequent sentencing judges' intent with respect to treatment during the remainder of the YCA term). 22 In his concurring opinion in the Court of Appeals, Judge Pell succinctly put these considerations to one side: "While I see, on this record, no indication to think that either Robinson or society will benefit by continuing the YCA treatment, Congress, by the statute applicable in this case, has mandated the continuance." 642 F.2d, at 1083.

12

454 U.S. 170 102 S.Ct. 216 70 L.Ed.2d 323 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.HENDRICKS COUNTY RURAL ELECTRIC MEMBERSHIP CORPORATION. HENDRICKS COUNTY RURAL ELECTRIC MEMBERSHIP CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD. Nos. 80-885, 80-1103. Argued Oct. 5, 1981. Decided Dec. 2, 1981. Syllabus Held : There is a reasonable basis in law for the practice of the National Labor Relations Board (NLRB) of excluding from collective-bargaining units only those confidential employees with a "labor nexus," while rejecting any claim that all employees with access to confidential information are beyond the reach of the definition of "employee" in § 2(3) of the National Labor Relations Act (NLRA). Pp. 177-192. (a) There is nothing in the Taft-Hartley Act's legislative history to support any inference, let alone conclusion, that Congress intended to alter, or disapproved, the NLRB's determination prior to the 1947 passage of the Act that only confidential employees with a "labor nexus" should be excluded from bargaining units. Rather, the contrary appears. Indeed, the Taft-Hartley Act's express inclusion of "professional employees" under the Act's coverage negates any reading of the legislative history as excluding confidential employees generally from § 2(3)'s definition of "employee." Pp. 177-185. (b) The dictum in NLRB v. Bell Aerospace Co., 416 U.S. 267, 284, n. 12, 94 S.Ct. 1757, 1766 n. 12, 40 L.Ed.2d 134, that Congress "clearly thought that the [NLRA] did not cover 'confidential employees,' even under a broad definition of that term," cannot be squared with congressional intent. Nor is there any merit to the argument that the NLRB has applied the labor-nexus test inconsistently. A review of the NLRB's decisions indicates that it has never followed a practice of depriving all employees who have access to confidential business information from the full panoply of rights afforded by the NLRA. Rather, for over 40 years, the NLRB, while declining to create any implied exclusion from the definition of "employee" for confidential employees, has applied a labor-nexus test in identifying those employees who should be excluded from bargaining units because of access to confidential business information. This consistent, longstanding interpretation of the NLRA by the NLRB cannot be ignored. Pp. 186-190. 627 F.2d 766 and 631 F.2d 734, reversed and remanded. Lawrence G. Wallace, Washington, D. C., for N. L. R. B. Warren D. Krebs, Lebanon, Ind., for Hendricks County REMC. Russ R. Mueller, Milwaukee, Wis., for Malleable Iron Range Co. Justice BRENNAN delivered the opinion of the Court. 1 The question presented is whether an employee who, in the course of his employment, may have access to information considered confidential by his employer is impliedly excluded from the definition of "employee" in § 2(3) of the National Labor Relations Act and denied all protections under the Act.1 2 * We have before us two cases under the same docket number. We shall first state separately the factual and procedural background of each. The Hendricks case 3 Mary Weatherman was the personal secretary to the general manager and chief executive officer of respondent Hendricks County Rural Electric Membership Corp. (Hendricks), a rural electric membership cooperative. She had been employed by the cooperative for nine years. In May 1977 she signed a petition seeking reinstatement of a close friend and fellow employee, who had lost his arm in the course of employment with Hendricks, and had been dismissed. Several days later she was discharged. 4 Weatherman filed an unfair labor practice charge with the National Labor Relations Board (NLRB or Board), alleging that the discharge violated § 8(a)(1) of the National Labor Relations Act (NLRA or Act), 29 U.S.C. § 158(a)(1). Hendricks' defense, inter alia, was that Weatherman was denied the Act's protection because as a "confidential" secretary she was impliedly excluded from the Act's definition of "employee" in § 2(3). The Administrative Law Judge (ALJ) rejected this argument. He noted that the Board's decisions had excluded from bargaining units only those "confidential employees . . . [']who assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations.' " 236 N.L.R.B. 1616, 1619 (1978), quoting B. F. Goodrich Co., 115 N.L.R.B. 722, 724 (1956). Applying this "labor nexus" test, the ALJ found that Weatherman was not in any event such a "confidential employee."2 He also determined that Hendricks had discharged Weatherman for activity—signing the petition—protected by § 7 of the Act, 29 U.S.C. § 157.3 The ALJ thus sustained Weatherman's unfair labor practice charge. The Board affirmed "the rulings, findings, and conclusions of the Administrative Law Judge," and ordered that Weatherman be reinstated with backpay. 236 N.L.R.B., at 1616. 5 Hendricks sought review in the United States Court of Appeals for the Seventh Circuit and the Board cross-petitioned for enforcement. A divided panel of the court reversed and remanded for further proceedings. 603 F.2d 25 (1979). Although the majority agreed with the Board's factual finding that Weatherman did not "assist in a confidential capacity with respect to labor relations policies," id., at 28, the majority, relying on language in a footnote to NLRB v. Bell Aero space Co., 416 U.S. 267, 284, n. 12, 94 S.Ct. 1757, 1766, n. 12, 40 L.Ed.2d 134 (1974), held that "all secretaries working in a confidential capacity, without regard to labor relations, [must] be excluded from the Act." 603 F.2d, at 30.4 The Court of Appeals therefore remanded for a determination whether Weatherman came within this substantially broader definition of confidential secretary. 6 On remand, the Board found that Weatherman was not privy to the confidences of her employer and thus concluded that she did not fall within the broader definition of confidential secretary that the Court of Appeals had directed the Board to apply. 247 N.L.R.B. 498 (1980).5 Hendricks again petitioned for review and the Board cross-petitioned for enforcement. The Court of Appeals, by a divided panel, denied enforcement. 627 F.2d 766 (1980). The majority held that the Board had "actually reapplie[d] the old standard incorporating the labor nexus," and that the evidence in the record failed to support a finding that Weatherman did not come within the court's broader definition of confidential secretary. Id., at 770.6 The Malleable case 7 This case grew out of efforts of the Office and Professional Employees International Union (Union) to represent, as collective-bargaining agent, various employees of respondent Malleable Iron Range Co. (Malleable). In December 1978 the Union sought certification as the collective-bargaining representative for a unit of office clerical, technical, and professional personnel employed at the respondent's facility in Beaver Dam, Wis. At the subsequent representation hearing, Malleable challenged the inclusion of 18 employees in the unit on the ground that they had access to confidential business information. The Regional Director of the NLRB rejected Malleable's objection, concluding that none of the challenged 18 employees was a confidential employee under the Board's "labor nexus" test. App. to Pet. for Cert. 76a-94a. The Union prevailed in a later representation election, and was accordingly certified as the bargaining agent for the unit. Malleable nevertheless refused to bargain with the Union. Seeking relief, the Union filed unfair labor practice charges with the NLRB. The Board found that Malleable's refusal to bargain violated §§ 8(a)(5) and (1) of the Act, 29 U.S.C. §§ 158(a)(5) and (1), and issued a bargaining order. 244 N.L.R.B. 485 (1979). 8 Malleable petitioned the Court of Appeals for the Seventh Circuit for review of the order and the Board cross-petitioned for enforcement. In an unreported opinion, a divided panel of the court denied enforcement. App. to Pet. for Cert. 56a-60a. Order denying enforcement, 631 F.2d 734 (1980). The majority noted that the Regional Director, in determining that none of the 18 individuals was a confidential employee, had applied the Board's labor-nexus test which the Seventh Circuit had rejected in the earlier decisions involving Hendricks. The court remanded the case to the Board for reconsideration consistent "with the Hendricks case." App. to Pet. for Cert. 56a, 59a. 9 We granted the Board's petition for certiorari in both cases to resolve the conflict among the Courts of Appeals respecting the propriety of the Board's practice of excluding from collective-bargaining units only those confidential employees with a "labor nexus," while rejecting any claim that all employees with access to confidential information are beyond the reach of § 2(3)'s definition of "employee."7 450 U.S. 964, 101 S.Ct. 1479, 67 L.Ed.2d 612 (1981). We hold that there is a reasonable basis in law for the Board's use of the "labor nexus" test. We therefore reverse the judgments of the Court of Appeals, with directions in the Hendricks case to enforce the Board's order,8 and with directions in the Malleable case for further proceedings consistent with this opinion. II 10 Section 2(3) of the NLRA provides that the "term 'employee' shall include any employee . . ." (emphasis added), with certain stated exceptions such as "agricultural laborers," "supervisors" as defined in § 2(11), and "independent contractors."9 Under a literal reading of the phrase "any employee," then, the workers in question are "employees." But for over 40 years, the NLRB, while rejecting any claim that the definition of "employee" in § 2(3) excludes confidential employees, has excluded from the collective-bargaining units determined under the Act those confidential employees satisfying the Board's labor-nexus test. Respondents Hendricks and Malleable (hereafter respondents) argue that contrary to the Board's practice, all employees who may have access to confidential business information are impliedly excluded from the definition of employee in § 2(3). 11 In assessing the respondents' argument, we must be mindful of the canon that "the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong, especially where Congress has refused to alter the administrative construction." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969) (footnote omitted); see NLRB v. Bell Aerospace Co, 416 U.S., at 274-275, 94 S.Ct., at 1761-1762; Zemel v. Rusk, 381 U.S. 1, 11-12, 85 S.Ct. 1271, 1278-1279, 14 L.Ed.2d 179 (1965). We therefore proceed to review the Board's determinations from 1940 to 1946 whether confidential employees were "employees" within § 2(3) of the NLRA (Wagner Act), and then determine whether Congress, when it considered those determinations in enacting the Labor Management Relations Act of 1947 (Taft-Hartley Act), intended to alter the Board's practice. 12 * In 1935 the Wagner Act became law. 49 Stat. 449. The Act's broad objectives were to "encourag[e] the practice and procedure of collective bargaining and . . . protec[t] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection." Id., at 449-450. The employees covered by the Act were defined in § 2(3): "The term 'employee' shall include any employee . . . but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse." Although the Act's express exclusions did not embrace confidential employees, the Board was soon faced with the argument that all individuals who had access to confidential information of their employers should be excluded, as a policy matter, from the definition of "employee." The Board rejected such an implied exclusion, finding it to have "no warrant under the Act." Bull Dog Electric Products Co., 22 N.L.R.B. 1043, 1046 (1940). See also Creamery Package Manufacturing Co., 34 N.L.R.B. 108, 111 (1941). But in fulfilling its statutory obligation to determine appropriate bargaining units under § 9 of the Act, 29 U.S.C. § 159, for which broad discretion has been vested in the Board, see Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491-492, 67 S.Ct. 789, 793, 91 L.Ed. 1040 (1947); Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251 (1941), the Board adopted special treatment for the narrow group of employees with access to confidential, labor-relations information of the employer. The Board excluded these individuals from bargaining units composed of rank-and-file workers.10 See, e. g., Brooklyn Daily Eagle, 13 N.L.R.B. 974, 986 (1939); Creamery Package Manufacturing Co., supra, at 110. The Board's rationale was that "management should not be required to handle labor relations matters through employees who are represented by the union with which the [c]ompany is required to deal and who in the normal performance of their duties may obtain advance information of the [c]ompany's position with regard to contract negotiations, the disposition of grievances, and other labor relations matters." Hoover Co., 55 N.L.R.B. 1321, 1323 (1944). 13 Following its formulation, through 1946, the Board routinely applied the labor-nexus test in numerous decisions to identify those individuals who were to be excluded from bargaining units because of their access to confidential information.11 And in at least one instance in which a Court of Appeals had occasion to review the Board's application of a labor-nexus test under the Wagner Act, the test was upheld. NLRB v. Poultrymen's Service Corp., 138 F.2d 204, 210-211 (CA3 1943). See also NLRB v. Armour & Co., 154 F.2d 570, 573-574 (CA10 1945); Polish National Alliance v. NLRB, 136 F.2d 175, 180 (CA7 1943), aff'd, 322 U.S. 643, 64 S.Ct. 1196, 88 L.Ed. 1509 (1944). 14 In 1946, in Ford Motor Co., 66 N.L.R.B. 1317, 1322, the Board refined slightly the labor-nexus test because in its view the "definition [was] too inclusive and needlessly preclude[d] many employees from bargaining collectively together with other workers having common interests." Henceforth, the Board announced, it intended "to limit the term 'confidential' so as to embrace only those employees who assist and act in a confidential capacity to persons who exercise 'managerial' functions in the field of labor relations."12 This was the state of the law in 1947 when Congress amended the NLRA through the enactment of the Taft-Hartley Act. 61 Stat. 136. B 15 Although the text of the Taft-Hartley Act also makes no explicit reference to confidential employees, when Congress addressed the scope of the NLRA's coverage, the status of confidential employees was discussed. But nothing in that legislative discussion supports any inference, let alone conclusion, that Congress intended to alter the Board's pre-1947 determinations that only confidential employees with a "labor nexus" should be excluded from bargaining units. Indeed, the contrary appears. 16 The Taft-Hartley Act was in part a response to the Court's decision in Packard Motor Car Co. v. NLRB, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947), which upheld the Board's certification of a bargaining unit composed of plant foremen. See NLRB v. Bell Aerospace Co., 416 U.S., at 279, 94 S.Ct., at 1764. Although the House and Senate initially passed differing bills, both Houses explicitly excluded "supervisors" from the definition of "employee" in the NLRA. H.R. 3020, 80th Cong., 1st Sess., § 2(3) (1947); S. 1126, 80th Cong., 1st Sess., § 2(3) (1947). In defining the term "supervisor," however, the bills differed substantially. The House bill defined "supervisor" to include within its scope the confidential employee, broadly defined as one "who by the nature of his duties is given by the employer information that is of a confidential nature, and that is not available to the public, to competitors, or to employees generally, for use in the interest of the employer."13 The Senate, on the other hand, did not include the confidential employee within its definition of "supervisor."14 17 The differing House and Senate bills were submitted to a Conference Committee. In Committee, the Senate definition of "supervisor," with no reference to confidential employees, prevailed. As described in the statement of the House Managers, appended to the Conference Report: 18 "The conference agreement, in the definition of 'supervisor,' limits such term to those individuals treated as supervisors under the Senate amendment. In the case of persons working in the labor relations, personnel and employment departments, it was not thought necessary to make specific provision, as was done in the House bill, since the Board has treated, and presumably will continue to treat, such persons as outside the scope of the act. This is the prevailing Board practice with respect to such people as confidential secretaries as well, and it was not the intention of the conferees to alter this practice in any respect." H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 35 (1947), U.S.Code Cong.Serv.1947, pp. 1135, 1141.15 19 With this understanding, both Houses adopted the Conference Report, 93 Cong.Rec. 6393 (1947) (House); id., at 6536 (Senate). Although President Truman vetoed the Taft-Hartley bill, see id., at 7485-7488 (veto message), the bill nevertheless became law when Congress successfully overrode the veto, id., at 7489 (House); id., at 7538 (Senate). 20 The Court of Appeals interpreted the legislative history of Congress' exclusion of "supervisors" from the definition of "employees" as warranting an implied exclusion for all workers who may have access to confidential business information of their employer. That interpretation must be rejected. It is flatly belied by the Conference Committee's rejection of the House proposal of an exclusion of all confidential employees—for obviously the House conceded on this issue to the Senate.16 21 Indeed, the Taft-Hartley Act's express inclusion of "professional employees" under the Act's coverage17 negates any reading of the legislative history as excluding confidential employees generally from the definition of employee in § 2(3). The definition of professional employees was intended to cover "such persons as legal, engineering, scientific and medical personnel together with their junior professional assistants." H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 36 (1947), U.S.Code Cong.Serv.1947, p. 1141.18 But surely almost all such persons would likely be privy to confidential business information and thus would fall within the broad definition of confidential employee excluded under the House bill. It would therefore be extraordinary to read an implied exclusion for confidential employees into the statute that would swallow up and displace almost the entirety of the professional-employee inclusion. 22 Plainly, too, nothing in the legislative history of the Taft-Hartley Act provides any support for the argument that Congress disapproved the Board's prior practice of applying a labor-nexus test to identify confidential employees whom the Board excluded from bargaining units. To the contrary, the House Managers' statement accompanying the Conference Committee Report indicates that Congress intended to leave the Board's historic practice undisturbed.19 III 23 The Court of Appeals, and the respondents here, rely on dictum in a footnote to NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974), to suggest that the 80th Congress believed that all employees with access to confidential business information of their employers had been excluded from the Wagner Act by prior NLRB decisions and that Congress intended to freeze that interpretation of the Wagner Act into law. The Bell Aerospace dictum is: 24 "In 1946 in Ford Motor Co., 66 N.L.R.B. 1317, 1322, the Board had narrowed its definition of 'confidential employees' to embrace only those who exercised ' "managerial" functions in the field of labor relations.' The discussion of 'confidential employees' in both the House and Conference Committee Reports, however, unmistakably refers to that term as defined in the House bill, which was not limited just to those in 'labor relations.' Thus, although Congress may have misconstrued recent Board practice, it clearly thought that the Act did not cover 'confidential employees' even under a broad definition of that term." Id., at 284, n. 12, 94 S.Ct., at 1766, n. 12. 25 Obviously this statement was unnecessary to the determination whether managerial employees are excluded from the Act, which was the question decided in Bell Aerospace. In any event, the statement that Congress "clearly thought that the Act did not cover 'confidential employees,' even under a broad definition of that term," is error. The error is clear in light of our analysis above of the legislative history of the Taft-Hartley Act pertinent to the question. Moreover, the footnote erroneously implies that Ford Motor Co., 66 N.L.R.B. 1317 (1946), marked a major departure from the Board's prior practice. To the contrary, that Board decision introduced only a slight refinement of the labor-nexus test which the Board had applied in numerous decisions from 1941 to 1946. See n. 11, supra. Certainly the Conference Committee, in approving the Board's "prevailing practice," was aware of the Board's line of decisions.20 Cf. Cannon v. Uni vesity of Chicago, 441 U.S. 677, 696-699, 99 S.Ct. 1946, 1956-1958, 60 L.Ed.2d 560 (1979). Thus the only plausible interpretation of the Report is that, in describing the Board's prevailing practice of denying certain employees the full benefits of the Wagner Act, the Report referred only to employees involved in labor relations, personnel and employment functions, and confidential secretaries to such persons. For that, in essence, is where the Board law as of 1947 stood. It follows that the dictum in Bell Aerospace, and the Court of Appeals' reliance upon it, cannot be squared with congressional intent, and should be "recede[d] from" now that the issue of the status of confidential employees is "squarely presented." NLRB v. Boeing Co., 412 U.S. 67, 72, 93 S.Ct. 1952, 1955, 36 L.Ed.2d 752 (1973). 26 We also find no merit in the respondents' argument that the Board has applied the labor-nexus test inconsistently. As noted earlier, supra, at 178-181, the Board, in excluding "confidential employees" from bargaining units, routinely applied such a test in the six years preceding the enactment of Taft-Hartley. In the years following the passage of the Taft-Hartley Act, the Board continued to apply the labor-nexus criterion in determining whether individuals were to be excluded from bargaining units as confidential employees. In B. F. Goodrich Co., 115 N.L.R.B. 722 (1956), the Board reaffirmed its previous ruling in Ford Motor and underscored its intention "in future cases . . . to limit the term 'confidential' so as to embrace only those employees who assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations." 115 N.L.R.B., at 724 (footnote omitted) (emphasis deleted).21 In succeeding years, while continuing to apply the labor-nexus test, the Board has deviated from that stated intention in only one major respect: it has also, on occasion, consistent with the underlying purpose of the labor-nexus test, see supra, at 179, designated as confidential employees persons who, although not assisting persons exercising managerial functions in the labor-relations area, "regularly have access to confidential information concerning anticipated changes which may result from collective-bargaining negotiations." Pullman Standard Division of Pullman, Inc., 214 N.L.R.B. 762, 762-763 (1974); see Triangle Publications, Inc., 118 N.L.R.B. 595, 596, and nn. 3-4 (1957). 27 In sum, our review of the Board's decisions indicates that the Board has never followed a practice of depriving all employees who have access to confidential business information from the full panoply of rights afforded by the Act. Rather, for over 40 years, the Board, while declining to create any implied exclusion from the definition of "employee" for confidential employees, has applied a labor-nexus test in identifying those employees who should be excluded from bargaining units because of access to confidential business information.22 We cannot ignore this consistent, longstanding interpretation of the NLRA by the Board. See Bell Aerospace, 416 U.S., at 275, 94 S.Ct., at 1762; Red Lion Broadcasting Co. v. FCC, 395 U.S., at 381, 89 S.Ct., at 1801. IV 28 The Court's ultimate task here is, of course, to determine whether the Board's "labor nexus" limitation on the class of confidential employees who, although within the definition of "employee" under § 2(3), may be denied inclusion in bargaining units has "a reasonable basis in law." See Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979); Chemical Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 166, 92 S.Ct. 383, 390, 30 L.Ed.2d 341 (1971); NLRB v. Hearst Publications, Inc., 322 U.S. 111, 131, 64 S.Ct. 851, 860, 88 L.Ed. 1170 (1944). Clearly the NLRB's longstanding practice of excluding from bargaining units only those confidential employees satisfying the Board's labor-nexus test, rooted firmly in the Board's understanding of the nature of the collective-bargaining process, and Congress' acceptance of that practice, fairly demonstrate that the Board's treatment of confidential employees does indeed have "a reasonable basis in law." We therefore return finally to the disposition of the cases before us. Hendricks 29 In Hendricks, the Board determined that the personal secretary, Mary Weatherman, was not a confidential secretary because she "did not act 'in a confidential capacity' " with respect to labor-relations matters. 236 N.L.R.B., at 1619. While the Court of Appeals affirmed this finding, it denied enforcement of the Board's order on the basis that the evidence failed to support the Board's additional finding, required by the Court of Appeals, that Weatherman had no access to confidential non-labor-related information. In approving the Board's limited labor-nexus exclusion, we have held that such a finding is irrelevant to the determination of whether the secretary was a confidential employee. In this Court respondent Hendricks does not argue that Weatherman came within the labor-nexus test as formulated by the Board, but rather concedes that Weatherman did not have "confidential duties 'with respect to labor policies.' " Brief for Respondent Hendricks 43. Because there is thus no dispute in this respect, and in any event no suggestion that the Board's finding regarding labor nexus was not supported by substantial evidence, we conclude that the Court of Appeals erred in holding that the record did not support the Board's determination that Weatherman was not a confidential employee with a labor nexus.23 We therefore reverse the judgment of the Court of Appeals in Hendricks insofar as enforcement of the Board's order was denied, and remand with directions to enter an order enforcing the Board's order. Malleable 30 In Malleable, as well, the respondent makes no argument that the 18 employees in question satisfy the labor-nexus test of the Board. Rather, Malleable argues, and the Court of Appeals held, that the Board should have applied a broader definition of confidential employee to include all employees in possession of confidential business information. Having rejected the broad exclusion on which the Court of Appeals' judgment relies, we reverse that judgment. But because the Court of Appeals has not yet addressed Malleable's contentions that some of the 18 employees should have been excluded from the bargaining unit for reasons entirely unrelated to whether they are confidential employees,24 we remand Malleable for further proceedings consistent with this opinion. 31 It is so ordered. 32 Justice POWELL, with whom THE CHIEF JUSTICE, Justice REHNQUIST, and Justice O'CONNOR join, concurring in part and dissenting in part. 33 I concur in the Court's holding that employees in the possession of proprietary or nonpublic business information are not for that reason excluded from the NLRA as "confidential" employees. By explicitly providing for the inclusion of professional employees, the Act itself indicates that Congress did not intend such a sweeping definition of the confidential employee exclusion. But because the majority's decision "tends to obliterate the line between management and labor,"1 a line which Congress insisted be observed by enacting the Taft-Hartley Act, I dissent from the conclusion that the confidential secretary in this litigation2 is not a confidential employee excluded from the Act. 34 * In NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974), we held that all managerial employees were excluded from the Act regardless of whether they had a "labor nexus." In reversing the Board, the Court found that a basic purpose of the Taft-Hartley Act was to establish a sharp line between management and labor. When the Board breached this line by deeming supervisors to be "employees" within the Act, Congress responded by passing the Taft-Hartley Act with its explicit exclusion of supervisory employees. And when the Board in Bell Aerospace departed from its own recognition that "[i]t was the clear intent of Congress to exclude from the coverage of the Act all individuals allied with management,"3 this Court responded by again requiring the Board to adhere to the dividing line between management and labor—a line fundamental to the industrial philosophy of the labor laws in this country.4 35 Indeed, it was to assure that those employees allied with management were not included in the ranks of labor that the Board originally developed the "supervisory," "managerial," and "confidential" employees exclusions from the Wagner Act. The Board recognized that employees who by their duties, knowledge, or sympathy were aligned with management should not be treated as members of labor. In the adversary system which our labor laws envision, neither management nor labor should be forced to accept a potential fifth column into its ranks. Thus, both before and after the Taft-Hartley Act, the Board excluded from bargaining units of the rank and file, employees who like "expediters" are "closely related to management," Friez & Sons, 47 N.L.R.B. 43, 47 (1943), or who like assistant buyers have "interests . . . more closely identified with those of management." Denver Dry Goods Co., 74 N.L.R.B. 1167, 1175 (1947). The Board has excluded employees "who formulate, determine, and effectuate an employer's policies," AFL-CIO, 120 N.L.R.B. 969, 973 (1958), and employees who because of their familial relation to management "are on an intimate relationship with officers of the company." Burke Brewery, Inc., 54 N.L.R.B. 1061, 1062, n. 2 (1944). 36 The "confidential employee" exclusion and the labor nexus which the Board insists upon must be viewed as part of this larger effort to keep the line between management and labor distinct. Certainly employees with knowledge of sensitive labor relations information or "who assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations,"5 fall on the management side of the line and should be excluded from the Act. But useful as it may be in identifying employees who are allied to management, the "labor nexus" test is but a means to this end. By its rigid insistence on the labor nexus in the case of confidential secretaries, the Board, and now this Court, have lost sight of the basic purpose of the labor-nexus test itself and of the fundamental theory of our labor laws. Thus, it makes little sense to exclude "expediters," "assistant buyers," and "employment interviewers" as managerial but include within the rank and file confidential secretaries who are privy to the most sensitive details of management decisionmaking, who work closely with managers on a personal and daily basis, and who occupy a position of trust incompatible with labor-management strife. To include employees so clearly allied to management within the ranks of labor does a disservice to management and labor alike.6 II 37 The Court's decision not only is in conflict with the basic framework of the labor laws, it also conflicts with explicit expressions of congressional intent on this subject. Congress only forbore from including an explicit provision in the Taft-Hartley Act excluding confidential secretaries because of its belief that the Board had been treating, and would continue to treat, such employees as allied to management. In discussing a proposed exclusion for confidential employees, the House Report stated: 38 "Most of the people who would qualify as 'confidential' employees are executives and are excluded from the act in any event. 39 "The Board, itself, normally excludes from bargaining units confidential clerks and secretaries to such people as these." H.R.Rep.No.245, 80th Cong., 1st Sess., 23 (1947) (emphasis added). 40 The Conference Report indicated a similar belief: 41 "In the case of persons working in labor relations, personnel and employment departments, it was not thought necessary to make specific provision, as was done in the House bill, since the Board has treated, and presumably will continue to treat, such persons as outside the scope of the act. This is the prevailing Board practice with respect to such people as confidential secretaries as well, and it was not the intention of the conferees to alter this practice in any respect." H.R.Conf.Rep.No.510, 80th Cong., 1st Sess., 35 (1947) (emphasis added). 42 It was in light of these statements in the legislative history that we felt confident in Bell Aerospace that " 'Congress could not have supposed that, while "confidential secretaries" could not be organized, their bosses could be.' " 416 U.S., at 284, 94 S.Ct., at 1766, quoting Bell Aerospace Co. v. NLRB, 475 F.2d 485, 491-492 (CA2 1973). 43 The Court's opinion argues that the foregoing explicit legislative history is to be ignored because the express exclusion in the House bill of confidential secretaries was omitted in Conference. But it is clear from the language in the Reports italicized above that the omission was prompted by an understanding that the Board itself consistently had excluded "such people as confidential secretaries."7 Indeed, the Members of Congress had no reason to believe that it could be argued seriously that confidential secretaries to management officials were not among the "individuals allied with management." Swift & Co., Inc., supra, 115 N.L.R.B. 752, 754 (1956). The "labor nexus," as increasingly narrowed by the Board and now accepted by this Court, is antithetical to any common-sense view or understanding of the role of confidential secretaries. III 44 Just as I would reject the Board's adherence to the labor-nexus test in the case of confidential secretaries, so, too, I would reject the Board's position that confidential employees are not excluded from the Act as a whole but only from collective bargaining. The Board urges the Court to hold that even if the secretary in this litigation was conceded to be a confidential employee, indeed, even if she had a labor nexus, the company still could not have dismissed her without incurring liability under the Act. 45 The Court wisely declines the Board's invitation. See, ante, at 186, n. 19. Such a holding would be a major departure from the basic philosophy of the Act. See Packard Motor Car Co. v. NLRB, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947). Under such an interpretation confidential employees with a labor nexus might do anything in furtherance of their allegiance to labor except join the union, and the company would be powerless to protect itself. Confidential employees might join picket lines, sign petitions advocating the cause of labor, speak out against management at employee meetings, and engage in all manner of concerted activity. Even in the midst of labor-management strife, the confidential secretaries to the top managers of the company, with daily access to the company's bargaining positions, might convey confidential information as to these positions to the union, as well as take their place on the picket lines. The company would be unable to dismiss them or demote them, at least without the risk of an unfair labor practice charge being filed. The Board developed the labor-nexus test because it recognized that "management should not be required to handle labor relations matters through employees who are represented by the union." Hoover Co., 55 N.L.R.B. 1321, 1323 (1944). Neither should management be required to expose its flank to confidential employees who are overtly committed to the union or the cause of labor in all but actual membership. 46 The legislative history of the Act contains no support whatever for the Board's position. To the contrary, the Congress repeatedly stated its belief that in addition to supervisors certain other employees would be excluded from the Act. Thus, the Conference Report stated that "[i]n the case of persons working in labor relations, personnel and employment departments, it was not thought necessary to make specific provision . . . since the Board has treated, and presumably will continue to treat, such persons as outside the scope of the act." H.R.Conf.Rep.No.510, 80th Cong., 1st Sess., 35 (1947), U.S.Code Cong.Serv.1947, p. 1141 (emphasis added). In a generally similar context in NLRB v. Bell Aerospace Co., 416 U.S., at 283, 94 S.Ct., at 1766, we said: "The legislative history strongly suggests that there also were other employees, much higher in the managerial structure, who were likewise regarded as so clearly outside the Act that no specific exclusionary provision was thought necessary" (emphasis added). As the majority's discussion of the legislative history indicates, the Congress viewed the confidential and managerial exemptions as akin to the supervisory exclusion. Congress considered that confidential and managerial employees, like supervisors, would be entirely excluded from the Act. 47 In Bell Aerospace, supra, at 289, 94 S.Ct., at 1769, we held that " 'managerial employees' are not covered by the Act." The majority accepts this holding. See ante, at 187. Yet if managerial employees are excluded from the Act in its entirety I see no principled reason why confidential employees with a labor nexus should be treated differently. 48 I would reject the Board's seeming "half-a-loaf" approach to the confidential employee exclusion.8 As Judge Craven explained for the Fourth Circuit: 49 "It strikes us as nonsense for the Board to exclude [a confidential secretary] from membership in the bargaining unit and then extend to her the same protection for the same concerted activity that she would have enjoyed if a union member. If [a confidential secretary] is committed to the union cause to the extent she joins the strike by refusing to cross the picket line, it would seem to matter little to the company that she is not technically a union member. A confidential secretary who plights her troth with the union differs in form, but not in substance, from one who holds a union card. Since she cannot formally join the unit, there is nothing incongruous in holding that she cannot 'plight her troth' with the unit. Indeed, it seems more consistent to say that if she cannot act in concert by participating in the unit, then she cannot act in concert on an informal basis, or more accurately, that if she does so, it will be without the protection of the Act." NLRB v. Wheeling Electric Co., 444 F.2d 783, 788 (1971). 50 Accord, Peerless of America, Inc. v. NLRB, 484 F.2d 1108, 1112 (CA7 1973). But see NLRB v. Southern Greyhound Lines, 426 F.2d 1299 (CA5 1970) (assuming without discussion that confidential employees are not excluded from the Act in its entirety). IV 51 After today's decision, labor must accept into its ranks confidential secretaries who are properly allied to management. And these confidential employees, who are privy to the daily affairs of management, who have access to confidential information, and who are essential to management's operation may be subjected to conflicts of loyalty when the essence of their working relationship requires undivided loyalty. The basic philosophy of the labor relations laws, the expressed intent of Congress, and the joint desire of labor and management for undivided loyalty all counsel against such a result. 1 Section 2(3), 61 Stat. 137, as set forth in 29 U.S.C. § 152(3), provides: "The term 'employee' shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act, as amended from time to time, or by any other person who is not an employer as herein defined." 2 The ALJ held that although the Board excluded confidential employees with a labor nexus from bargaining units, it afforded them the other protections of the NLRA. Therefore, the ALJ held, even if Weatherman were a confidential employee excludable from a bargaining unit, § 8(a)(1) barred Hendricks from discharging Weatherman for engaging in protected concerted activity. 3 The Board has held that circulation of a petition on behalf of a discharged employee is protected activity under § 7. Youngstown Osteopathic Hospital Assn., 224 N.L.R.B. 574 (1976). 4 Judge Bonsal, sitting by designation, dissented, being of the view that the record established that Weatherman was not a confidential employee. 5 The Board stated in part: "Although Weatherman typed all of [general manager] Dillon's letters, this correspondence apparently did not relate to labor relations or personnel matters other than occasional letters referring to the dates of negotiating meetings with a union. Nor is there any evidence that it concerned confidential matters of any description. Weatherman generally did not place Dillon's telephone calls, nor did she keep a record of his appointments. Weatherman did share a partitioned office with Dillon, but no personnel records or confidential records of any type were kept there, excluding Dillon's testimony that he kept some papers concerning labor negotiations in a file behind his desk. Weatherman did not attend meetings of Respondent's board of directors or other management meetings. However, she did type minutes of meetings of the board of directors and the agenda for such meetings. While these meetings apparently occasionally involved personnel matters, there is no indication that such matters, or any other issues discussed during them, were confidential. Weatherman did not type internal memoranda regarding labor relations or personnel or employment matters. Finally, and most significantly, Dillon conceded at the hearing that the Respondent did not maintain secret or classified papers or documents." 247 N.L.R.B., at 498-499 (footnotes omitted). 6 Judge Cudahy dissented. He suggested, inter alia, that there "is abundant evidence in the record to support the Board's conclusion that Weatherman is not properly classified as a confidential secretary." 627 F.2d, at 771. 7 Cf. Union Oil of California, Inc. v. NLRB, 607 F.2d 852, 853-854 (CA9 1979); NLRB v. Allied Products Corp., 548 F.2d 644, 648 (CA6 1977); Westinghouse Electric Corp. v. NLRB, 398 F.2d 669, 670 (CA6 1968); NLRB v. Quaker City Life Ins. Co., 319 F.2d 690, 694 (CA4 1963); NLRB v. Armour & Co., 154 F.2d 570, 573-574 (CA10 1945); NLRB v. Poultrymen's Service Corp., 138 F.2d 204, 210-211 (CA3 1943). 8 We also granted Hendricks' cross-petition in 450 U.S. 964, 101 S.Ct. 1479, 67 L.Ed.2d 612, which presented the question whether the Court of Appeals properly rejected Hendricks' claim that Weatherman was the functional equivalent of a personnel department employee and therefore excluded from coverage of the Act on that basis as well. After briefing and argument, however, we are persuaded that our grant of certiorari on the cross-petition was improvident. The Court of Appeals held that the evidence in the record supported the Board's finding that Weatherman was not the functional equivalent of a personnel department employee. As such, we are presented primarily with a question of fact, which does not merit Court review. The writ of certiorari in 450 U.S. 964, 101 S.Ct. 1479, 67 L.Ed.2d 612 is therefore dismissed as improvidently granted. See Rudolph v. United States, 370 U.S. 269, 82 S.Ct. 1277, 8 L.Ed.2d 484 (1962) (per curiam); Southern Power Co. v. North Carolina Public Service Co., 263 U.S. 508, 44 S.Ct. 164, 68 L.Ed. 413 (1924). 9 For the full text of the current definition, see n. 1, supra. 10 Although the early decisions did not explicitly preclude the Board from certifying a bargaining unit composed solely of confidential employees, that possibility was apparently foreclosed in Hoover Co., 55 N.L.R.B. 1321, 1322-1323 (1944), and Electric Boat Co., 57 N.L.R.B. 1348, 1349 (1944), thereby excluding confidential employees, as defined by the Board, from collective-bargaining units. 11 See Warner Brothers Pictures, Inc., 35 N.L.R.B. 739, 744 (1941); Chrysler Corp., 36 N.L.R.B. 157, 161-162 (1941); Western Union Telegraph Co., 36 N.L.R.B. 1066, 1069 (1941); General Motors Corp., 37 N.L.R.B. 441, 446-447 (1941); Montgomery Ward & Co., 38 N.L.R.B. 297, 300 (1942); Chrysler Detroit Co., 38 N.L.R.B. 313, 321 (1942); Cincinnati Times-Star Co., 39 N.L.R.B. 39, 42 (1942); Poultrymen's Service Corp., 41 N.L.R.B. 444, 448 (1942), enf'd, 138 F.2d 204 (CA3 1943); Polish National Alliance, 42 N.L.R.B. 1375, 1381-1382 (1942), enf'd as modified, 136 F.2d 175 (CA7 1943), aff'd, 322 U.S. 643, 64 S.Ct. 1196, 88 L.Ed. 1509 (1944); Bendix Products Division, 43 N.L.R.B. 912, 915-916 (1942); Paramount Pictures, Inc., 45 N.L.R.B. 116, 122-123 (1942); Murray Corp., 45 N.L.R.B. 854, 856-857 (1942); Puget Sound Bridge & Dredging Co., 46 N.L.R.B. 1071, 1074 (1943); Bohn Aluminum & Brass Corp., 47 N.L.R.B. 1229, 1231 (1943); Armour & Co., 49 N.L.R.B. 688, 690 (1943); Firestone Tire & Rubber Co., 50 N.L.R.B. 679, 682 (1943); Boston Edison Co., 51 N.L.R.B. 118, 123 (1943); Republic Steel Corp., 51 N.L.R.B. 1228, 1230 (1943); St. Johns River Shipbuilding Co., 52 N.L.R.B. 12, 17 (1943); General Motors Corp., 52 N.L.R.B. 649, 653-655 (1943); Babcock & Wilcox Co., 52 N.L.R.B. 900, 903 (1943); U. S. Smelting, Refining & Mining Co., 53 N.L.R.B. 84, 86 (1943); New York Telephone Co., 53 N.L.R.B. 307, 310 (1943); Potash Co., 53 N.L.R.B. 441, 444 (1943); Coolerator Co., 53 N.L.R.B. 461, 462-464 (1943); Colonial Broach Co., 53 N.L.R.B. 846, 848 (1943); General Motors Corp., 53 N.L.R.B. 1096, 1100 (1943); Consolidated Vultee Aircraft Corp., 54 N.L.R.B. 103, 112-114 (1943); Armour & Co., 54 N.L.R.B. 1005, 1013 (1944), enf'd as modified, 154 F.2d 570 (CA10 1945); Armour & Co., 54 N.L.R.B. 1462, 1465 (1944); General Cable Corp., 55 N.L.R.B. 1143, 1145-1146 (1944); Hoover Co., 55 N.L.R.B. 1321, 1322-1323 (1944); West Penn Power Co., 55 N.L.R.B. 1356, 1358 (1944); Spicer Manufacturing Corp., 55 N.L.R.B. 1491, 1503 (1944); Bell Aircraft Corp., 56 N.L.R.B. 1356, 1359 (1944); General Motors Corp., 56 N.L.R.B. 1547, 1549-1550 (1944); Utah Copper Co., 57 N.L.R.B. 308, 315-318 (1944); Electric Boat Co., 57 N.L.R.B. 1348, 1349 (1944); Chrysler Corp., 58 N.L.R.B. 239, 243-246 (1944); American Steel & Wire Co., 58 N.L.R.B. 253, 255 (1944); U. S. Automatic Corp., 58 N.L.R.B. 662, 664 (1944); South Bend Lathe Works, 59 N.L.R.B. 562, 564 (1944); Houdaille-Hershey Corp., 59 N.L.R.B. 1292, 1295 (1944); Aluminum Co. of America, 60 N.L.R.B. 388, 391 (1945); Consolidated Vultee Aircraft Corp., 60 N.L.R.B. 525, 527 (1945); Continental Steel Corp., 61 N.L.R.B. 97, 99-102 (1945); American Smelting and Refining Co., 61 N.L.R.B. 506, 508-509 (1945); Pacific Gas & Electric Co., 61 N.L.R.B. 564, 568 (1945); Magnolia Pipe Line Co., 61 N.L.R.B. 723, 726-728 (1945); Bethlehem Steel Co., 63 N.L.R.B. 1230, 1234-1236 (1945). 12 The Ford Motor approach was followed in three decisions in 1946. St. Louis Independent Packing Co., 67 N.L.R.B. 543, 547; Tennessee Gas & Transmission Co., 67 N.L.R.B. 1375, 1379; Brown & Sharpe Manufacturing Co., 68 N.L.R.B. 487, 489. 13 Section 2(12) of the House bill read in its entirety: "The term 'supervisor' means any individual— "(A) who has authority, in the interest of the employer— "(i) to hire, transfer, suspend, lay off, recall, promote, demote, discharge, assign, reward, or discipline any individuals employed by the employer, or to adjust their grievances, or to effectively recommend any such action; or "(ii) to determine, or make effective recommendations with respect to, the amount of wages earned by any individuals employed by the employer, or to apply, or to make effective recommendations with respect to the application of, the factors upon the basis of which the wages of any individuals employed by the employer are determined, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the exercise of independent judgment; "(B) who is employed in labor relations, personnel, employment, police, or time-study matters or in connection with claims matters of employees against employers, or who is employed to act in other respects for the employer in dealing with other individuals employed by the employer, or who is employed to secure and furnish to the employer information to be used by the employer in connection with any of the foregoing; or "(C) who by the nature of his duties is given by the employer information that is of a confidential nature, and that is not available to the public, to competitors, or to employees generally, for use in the interest of the employer." 14 The Senate bill defined "supervisor" in § 2(11) in the following terms: "The term 'supervisor' means any individual having authority, in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or to adjust their grievances, or effectively to recommend such action if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." The Senate Committee that reported the bill out apparently considered but rejected a more expansive definition. See S. ---, 80th Cong., 1st Sess., § 2(12) (1947) (Act amending NLRA; Comm. Print, Mar. 19, 1947); S. ---, 80th Cong., 1st Sess., § 2(12) (1947) (Act amending NLRA; Comm. Print, Mar. 21, 1947). 15 Senator Taft similarly described the Conference Committee's action in a written summary inserted in the Congressional Record: "Supervisors: Both the House bill and the Senate amendment excluded supervisors from the individuals deemed to be employees for the purposes of the act. There was a sharp divergence between the House and Senate, however, with respect to the occupational groups which fell within this definition. The Senate amendment, which the conference ultimately adopted, is limited to bona fide supervisors. The House had included numerous other classes. There were generally (A) certain personnel who fix the amount of wages earned by other employees, such as inspectors, checkers, weighmasters, and time-study personnel, (B) labor relations personnel, police, and claims personnel, and (C) confidential employees. The Senate amendment confined the definition of supervisor to individuals generally regarded as foremen and employees of like or higher rank." 93 Cong.Rec. 6442 (1947) (emphasis added). 16 This concession is clear in the comments made by Representative Hartley, sponsor of the House bill, in explaining to the full House the results of the House-Senate Conference: "Entirely too much emphasis has been placed on the so-called concessions that the House conferees made during the conference. I will be very frank and say that I agreed to some of these concessions very reluctantly. I would much rather have seen the House bill as it originally passed enacted into law, but I want to see a bill that can be enacted into law passed by this Congress. . . . "I also want to make it perfectly clear that there was no concession made except upon the assurance that it would provide us votes in another body to be certain that the legislation would be enacted into law." Id., at 6383-6384. 17 See § 9(b) of the NLRA, 29 U.S.C. § 159(b) (providing that the Board may not approve a bargaining unit "if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit"); § 2(12), 29 U.S.C. § 152(12) (defining "professional employee"). 18 The House bill did not define "professional employees," but did explicitly give "any craft, department, plant, trade, calling, profession or other distinguishable group within a proposed bargaining unit" the opportunity to exclude itself from the bargaining unit. H.R. 3020, 80th Cong., 1st Sess., § 9(f)(2) (1947) (emphasis added). The Senate bill similarly allowed groups of professional employees to exclude themselves from bargaining units, § 9(b)(1), but in addition defined the term "professional employee." The version that ultimately was adopted by both Houses incorporated the Senate's definition of professional employee and permitted groups of professional employees to exclude themselves from proposed bargaining units in which nonprofessional employees were to be included. See n. 17, supra. 19 It is true that the Conference Committee Report, in stating that the Board had treated confidential employees as "outside the scope of" the Wagner Act, could suggest that Congress failed to discern the Board's actual practice of excluding confidential employees, as defined by the labor-nexus test, from bargaining units, but still affording them the other protections of the Act. See, e. g., Bethlehem Steel Co., 63 N.L.R.B. 1230, 1232, and n. 2 (1945); Southern Colorado Power Co., 13 N.L.R.B. 699, 710 (1939), enf'd, 111 F.2d 539 (CA10 1940). Whether Congress' use of that phrase indicates that it misperceived the state of the law in this respect is not clear since the Board itself, in several instances, had used a similarly imprecise shorthand description of its practice with respect to confidential employees. See General Motors Corp., 53 N.L.R.B., at 1098; Armour & Co., 49 N.L.R.B., at 690; Armour & Co., 54 N.L.R.B., at 1465. Justice POWELL, in dissent, relying in part on the conferees' use of the phrase "outside the scope of," criticizes the Board's practice of allowing "labor nexus" employees some protections under the Act. Because we hold that the Board properly determined that neither the secretary in Hendricks nor the 18 workers in Malleable were "labor nexus" employees, we have no occasion in this case to decide the propriety of this aspect of the Board's practice. That question will be more properly addressed in a case that presents it. Whether Congress intended to leave the Board free to depart from a labor-nexus test is not entirely clear from the House Managers' statement. The statement may be read as indicating that Congress embraced the "prevailing Board practice with respect to" confidential employees. And as previously discussed, supra, at 178-181, the Board had consistently applied a labor-nexus test in defining confidential employees under the Wagner Act. But the declaration by the House Managers that the conferees did not intend "to alter" the Board's practice "in any respect" may alternatively be read as suggesting that Congress recognized this area as one for the exercise of Board expertise and judgment. The House Managers' suggestion that "presumably" the Board would continue its prevailing practice with respect to certain classes of employees is consistent with such a deferential reading. Because neither reading of the legislative history affords any comfort to respondents, we need not decide which is proper. 20 Indeed, the Board's labor-nexus test had been brought to the attention of the Congress through the NLRB's annual reports. See, e. g., 10 NLRB Ann.Rep. 34, and n. 92 (1946). Significantly, the NLRB's report submitted to Congress on January 3, 1947, five months before the Conference Committee Report was issued, described the Board's refinement of the labor-nexus test in Ford Motor. See 11 NLRB Ann.Rep. 32, and nn. 18-21 (1947). Citing two 1941 NLRB decisions, E. P. Dutton & Co., 33 N.L.R.B. 761; Montgomery Ward & Co., 36 N.L.R.B. 69, Justice POWELL finds "support in the case law" for his assertion that it was Congress' understanding that the Board had previously excluded from the Act all secretaries with access to confidential information, without regard to labor nexus. Post, at 196, n. 7. The significance he would give these two cases is clearly unwarranted. E. P. Dutton rested explicitly on the seminal labor-nexus decision in Brooklyn Daily Eagle, 13 N.L.R.B. 974 (1939), to exclude three secretaries from a bargaining unit. 33 N.L.R.B., at 767-768, n. 8. And in Montgomery Ward & Co., supra, the Board relied in turn on E. P. Dutton. See Montgomery Ward & Co., supra, at 73, n. 6, citing E. P. Dutton. But whatever support Justice POWELL may find in these two decisions for his understanding of Board law in 1941, his reading of congressional awareness is plainly erroneous; it entirely ignores congressional acceptance of the countless Board decisions between 1941 and 1947 in which the NLRB, in determining whether individuals were confidential employees excludable from bargaining units, consistently and explicitly required a labor nexus. See n. 11, supra. 21 The B. F. Goodrich decision was apparently prompted by the fact that the Board, on several occasions following the Ford Motor decision, had returned to its prior practice of designating as "confidential employees" those with mere access to confidential, labor-relations information. See Bond Stores, Inc., 99 N.L.R.B. 1029, 1031, n. 4 (1952); Minneapolis-Honeywell Regulator Co., 107 N.L.R.B. 1191, 1192 (1954). 22 Indeed, while it may be true that the Board's formulation of the labor-nexus test has deviated in minor respects over the years, the refinements are of the sort that are to be expected—if not required—in the process of case-by-case adjudication by an administrative agency. 23 We do not suggest that personal secretaries to the chief executive officers of corporations will ordinarily not constitute confidential employees. Hendricks is an unusual case, inasmuch as Weatherman's tasks were "deliberately restricted so as to preclude her from" gaining access to confidential information concerning labor relations. 236 N.L.R.B. 1616, 1619 (1978). Whether Hendricks imposed such constraints on Weatherman out of specific distrust or merely a sense of caution, it is unlikely that Weatherman's position mirrored that of executive secretaries in general. 24 Malleable apparently seeks to argue that 13 of the challenged persons should be excluded as "managerial" employees, and that another 4 should be excluded as "supervisors." Brief for Malleable in Opposition 2, n. 1. 1 Packard Motor Car Co. v. NLRB, 330 U.S. 485, 494, 67 S.Ct. 789, 794, 91 L.Ed. 1040 (1947) (Douglas, J., dissenting). 2 The secretary here had worked for four years as the personal secretary to the general manager, the chief executive officer of the company. She opened his mail, typed his letters, answered the phone, and typed the minutes of meetings of the board of directors. She and the general manager shared a single office with a 6-foot partition in between their desks. She could overhear his telephone conversations when he raised his voice. She handled no labor relations materials. 3 Swift & Co., 115 N.L.R.B. 752, 753-754 (1956) (emphasis added). 4 As Justice Douglas explained in his dissent in Packard, supra: "The present decision [by the Court] . . . tends to obliterate the line between management and labor. It lends the sanctions of federal law to unionization at all levels of the industrial hierarchy. It tends to emphasize that the basic opposing forces in industry are not management and labor but the operating group on the one hand and the stockholder and bondholder group on the other. . . . [I]f Congress, when it enacted the National Labor Relations Act, had in mind such a basic change in industrial philosophy, it would have left some clear and unmistakable trace of that purpose. But I find none." 330 U.S., at 494-495, 67 S.Ct., at 794-795. 5 B. F. Goodrich Co., 115 N.L.R.B. 722, 724 (1956). 6 Just as management opposes the creation of conflicts of loyalty within its midst, neither does labor wish to represent employees who are allied to management. Thus, in Montgomery Ward & Co., 36 N.L.R.B. 69, 73 (1941), for example, it was the union that sought to exclude confidential secretaries to store managers from the bargaining unit. See, e. g., Stroock & Stroock & Lavan, 253 N.L.R.B. 447, 448 (1980) ("the Employer argues the secretaries to the firm's executive committee are not confidential employees and should be included in the unit. The [union] counters that the Employer must have some confidential employees. . ."); E. P. Dutton & Co., 33 N.L.R.B. 761, 766 (1941) ("Among the employees whom the Guild would exclude as confidential are three secretaries to officers of the Company"). 7 This understanding was not without support in the case law. In E. P. Dutton & Co., supra, the Board excluded secretaries to officers of the company from the bargaining unit of clerical employees without any mention of a labor nexus. The Board took notice of the fact that " '[t]he nature of a personal secretary's work is such that much of the confidential material pertaining to the management passes through his or her hands. . . . [M]anagement should not be required to handle such material through employees in the unit represented by the union with which it is dealing.' " Id., at 766-767, n. 8, quoting Brooklyn Daily Eagle, 13 N.L.R.B. 974, 986 (1939) (emphasis added). The Board expressed its belief that "private secretaries should be excluded where . . . [the union] . . . is of the opinion that the personal and confidential relationship existing between the private secretaries . . . and the Company's officers is such as to create a possible division of their loyalties between the management and the potential bargaining agent." 33 N.L.R.B., at 766-767, n. 8 (emphasis added). See also Montgomery Ward & Co., supra (secretaries of store managers excluded without reference to labor nexus). 8 Of course there are limits to the power of management over its confidential employees just as there are limits to its power over its supervisory employees. See, e. g., NLRB v. Talladega Cotton Factory Inc., 213 F.2d 209 (CA5 1954).

67

454 U.S. 339 102 S.Ct. 460 70 L.Ed.2d 530 David R. HARRIS, Superintendent, Green Haven Correctional Facilityv.Jose RIVERA No. 81-17. Dec. 14, 1981. PER CURIAM. 1 The questions presented by the certiorari petition concern the constitutionality of inconsistent verdicts in a nonjury criminal trial. Certiorari is granted and the judgment of the United States Court of Appeals for the Second Circuit is reversed. 2 During the morning of March 26, 1973, respondent, Jose Rivera, his wife Cynthia Humdy, and their friend, Earl Robinson, entered the apartment of Milagros Torres. After a neighbor heard a woman scream, he called the police. The police arrested Humdy on the fire escape with $540 in cash in her coat pocket, and when the apartment door was opened, they found the place in shambles and arrested respondent and Robinson. 3 Each of the three intruders was indicted on five separate charges arising out of this one episode.1 They were tried jointly by a justice of the Supreme Court of New York sitting without a jury. The principal government witness was the victim Torres; Robinson was the only defense witness. If the judge had credited all of the testimony of Torres, presumably he would have found all three defendants guilty on all counts; acquittals presumably would have been rendered if the judge had credited all of Robinson's testimony. However, he found all defendants not guilty on three counts, acquitted Robinson on all counts, and convicted respondent and his wife of robbery in the second degree, grand larceny in the third degree, and burglary in the third degree.2 Respondent's convictions were affirmed on appeal. People v. Rivera, 57 A.D.2d 738, 393 N.Y.S.2d 630, leave to appeal denied, 42 N.Y.2d 894, 397 N.Y.S.2d 1035, 366 N.E.2d 887 (1977). 4 In 1978, the United States District Court for the Southern District of New York denied respondent's application for a federal writ of habeas corpus. After reviewing the trial record, the District Court rejected several challenges to the conviction which he described as "variations on the claim of insufficiency of the evidence."3 5 On appeal from that judgment, the United States Court of Appeals for the Second Circuit concluded that there was an apparent inconsistency in the state trial judge's general verdicts acquitting Robinson and convicting respondent. 643 F.2d 86. The Court of Appeals held that the New York trial judge had committed constitutional error because he had not explained that apparent inconsistency on the record.4 The court therefore entered an order requiring the state trial court either to grant respondent a new trial or to demonstrate by appropriate findings that there is a rational basis for the facially inconsistent verdicts.5 Under the Court of Appeals' holding, the adequacy of that explanation would thereafter be subject to review by the federal courts, which, if they were persuaded that the verdicts were irrationally inconsistent, would then decide whether respondent's conviction is constitutionally permissible.6 The Court of Appeals recognized that its constitutional holding was unprecedented.7 6 This case does not raise any question concerning the significance that an appellate court may attach to an apparent inconsistency in a verdict that is subject to review on direct appeal. This federal proceeding constituted a collateral attack on the final judgment of a state court that already had been affirmed on direct appeal. In such a proceeding a federal court is authorized to issue "a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).8 7 In view of the limited scope of review of a state judgment authorized in a federal habeas corpus proceeding, it is plain that the Court of Appeals erred in this case. On the assumption that the Court of Appeals correctly determined that the verdicts are facially inconsistent, we hold that there is no federal requirement that a state trial judge explain his reasons for acquitting a defendant in a state criminal trial; even if the acquittal rests on an improper ground, that error would not create a constitutional defect in a guilty verdict that is supported by sufficient evidence and is the product of a fair trial. 8 * The work of appellate judges is facilitated when trial judges make findings of fact that explain the basis for controversial rulings.9 Although there are occasions when an explanation of the reasons for a decision may be required by the demands of due process,10 such occasions are the exception rather than the rule.11 Federal judges have no general supervisory power over state trial judges; they may not require the observance of any special procedures except when necessary to assure compliance with the dictates of the Federal Constitution. Accordingly, the Court of Appeals erred when it directed the state trial judge to provide an explanation of the apparent inconsistency in his acquittal of Robinson and his conviction of respondent without first determining whether an inexplicably inconsistent verdict would be unconstitutional.12 II 9 Inconsistency in a verdict is not a sufficient reason for setting it aside. We have so held with respect to inconsistency between verdicts on separate charges against one defendant, Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932),13 and also with respect to verdicts that treat codefendants in a joint trial inconsistently, United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 135, 88 L.Ed. 48 (1943).14 Those cases, however, involved jury trials; as the Court of Appeals correctly recognized, both of those opinions stressed the unreviewable power of a jury to return a verdict of not guilty for impermissible reasons.15 It is argued that a different rule should be applied to cases in which a judge is the factfinder. 10 Although Dunn and Dotterweich preclude a holding that inconsistency in a verdict is intolerable in itself, inconsistency nevertheless might constitute evidence of arbitrariness that would undermine confidence in the quality of the judge's conclusion. In this case, the Court of Appeals suggested the possibility that the trial judge might have relied on impermissible considerations such as the fact that neither respondent nor his wife testified, or knowledge of adverse information not contained in the record.16 Undeniably, these possibilities exist, but they also would have existed if Robinson had been convicted or if he had been tried separately. In bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions. It is equally routine for them to instruct juries that no adverse inference may be drawn from a defendant's failure to testify; surely we must presume that they follow their own instructions when they are acting as factfinders. We are not persuaded that an apparent inconsistency in a trial judge's verdict gives rise to an inference of irregularity in his finding of guilt that is sufficiently strong to overcome the well-established presumption that the judge adhered to basic rules of procedure.17 11 Other explanations for an apparent inconsistency are far more likely. Most apparent is the likelihood that the judge's actual observation of everything that transpired in the courtroom created some doubt about the guilt of one defendant that he might or might not be able to articulate in a convincing manner.18 In this case, if the judge was convinced beyond a reasonable doubt that respondent and his wife were both guilty, it would be most unfortunate if a concern about the plausibility of a lingering doubt about Robinson should cause him to decide to convict all three rather than to try to articulate the basis for his doubt. 12 It is also possible that the judge may have made an error of law and erroneously assumed, for example, that Robinson should not be found guilty without evidence that he was to share in the proceeds of the larceny. There is no reason—and surely no constitutional requirement—that such an error pertaining to the case against Robinson should redound to the benefit of respondent.19 13 Even the unlikely possibility that the acquittal is the product of a lenity that judges are free to exercise at the time of sentencing but generally are forbidden to exercise when ruling on guilt or innocence, would not create a constitutional violation. We are aware of nothing in the Federal Constitution that would prevent a State from empowering its judges to render verdicts of acquittal whenever they are convinced that no sentence should be imposed for reasons that are unrelated to guilt or innocence. The Constitution does not prohibit state judges from being excessively lenient. 14 The question that respondent has standing to raise is whether his trial was fairly conducted. The trial judge, the New York appellate courts, the Federal District Court, and the United States Court of Appeals all agreed that the record contains adequate evidence of his guilt.20 These courts also agreed that the proceedings leading up to respondent's conviction were conducted fairly. Apart from the acquittal of Robinson, this record discloses no constitutional error. Even assuming that this acquittal was logically inconsistent with the conviction of respondent, respondent, who was found guilty beyond a reasonable doubt after a fair trial, has no constitutional ground to complain that Robinson was acquitted.21 15 Reversed. Justice MARSHALL, dissenting. 16 I write separately to underscore my disapproval of what I perceive to be a growing and inexplicable readiness on the part of this Court to "dispose of" cases summarily. Perhaps this trend is due to what is often lamented as our "increasing caseload." Whatever the reason for this trend, I believe that it can only detract from this Court's decisions in deserving cases by consuming time and energy better spent elsewhere. 17 Moreover, by deciding cases summarily, without benefit of oral argument and full briefing, and often with only limited access to, and review of, the record, this Court runs a great risk of rendering erroneous or ill-advised decisions that may confuse the lower courts: there is no reason to believe that this Court is immune from making mistakes, particularly under these kinds of circumstances. As Justice Jackson so aptly put it, although in a somewhat different context: "We are not final because we are infallible, but we are infallible only because we are final." Brown v. Allen, 344 U.S. 443, 540, 73 S.Ct. 397, 427, 97 L.Ed. 469 (1953) (concurring in result). I believe that this Court should reserve its final imprimatur for those cases to which we give plenary review, after full briefing and argument. 18 This is not to say that I believe that summary disposition is never appropriate. In my view, however, this Court should utilize this practice with more caution than has been true in the recent past. 1 They were indicted for robbery in the first degree, robbery in the second degree, possession of a dangerous weapon, grand larceny in the third degree, and burglary in the second degree. 2 The grand larceny count was dismissed at the sentencing stage as a lesser included count within robbery in the second degree. 3 "The next argument set forth is directed at the sufficiency of the evidence presented in petitioner's state court criminal trial. Such an allegation is beyond the scope of federal habeas corpus review and does not rise to the level of a constitutional infringement, United States ex rel. Nersesian v. Smith, 418 F.Supp. 26, 27 (S.D.N.Y.1976) unless 'there was no proof whatever of the crime charged.' United States ex rel. Terry v. Henderson, 426 F.2d 1125, 1131 (2d Cir. 1972). I have reviewed the trial transcript. Any allegation that the trial record is devoid of evidence must be rejected as are Petitioner's Points IV, VI, VII, and VIII which, when liberally read, are variations on the claim of insufficiency of the evidence." App. to Pet. for Cert. A-12. The District Court's ruling predated this Court's decision in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Court of Appeals held, however, that the insufficiency of the evidence claim is without merit even under the test of Jackson. 643 F.2d 86, 90, n. 2 (CA2 1981). 4 The Court of Appeals concluded that "when verdicts in a non-jury trial are facially inconsistent, the Due Process Clause of the Fourteenth Amendment does not permit a conviction to stand unless the trial court demonstrates by appropriate findings that the conviction validly rests on a rational basis." Id., at 87. 5 "For the foregoing reasons we reverse the District Court's judgment and remand with directions to enter an order conditionally vacating petitioner's conviction and awarding him a new trial unless the state trial court demonstrates by appropriate findings rendered within ninety days that petitioner's conviction is valid." Id., at 97. 6 "If the state trial court makes findings purporting to demonstrate the validity of the conviction, petitioner may return to the District Court and renew his habeas corpus challenge to his conviction. At that point, the issue will be whether the state court conviction, considered in light of the acquittal of petitioner's co-defendant and in light of the state trial court's findings, denies petitioner his liberty without due process of law." Id., at 97-98 (footnote omitted). 7 See id., at 94. The Court of Appeals relied on United States v. Maybury, 274 F.2d 899 (1960), in which a divided panel of the Second Circuit reversed a conviction on one count of a two-count indictment because the majority found the acquittal on the second count to be inconsistent with the conviction on the first. Judge Friendly expressed the view that the defendant could be retried on both counts, id., at 904-906; Judge Lumbard expressed the view that the defendant could be retried on neither count and that the indictment must be dismissed, id., at 906-907 (dissenting in part). Judge Learned Hand concluded that the verdicts were not logically inconsistent and would not have reversed the conviction "[r]egardless of whether the doctrine of [Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932)] applies to cases tried to a judge." Id., at 908 (dissenting in part and concurring in part). As the Court of Appeals in this case recognized, "in prohibiting inconsistent bench trial verdicts, Maybury does not purport to rest on any provision of the Constitution and may well have been decided solely in the exercise of the Court's supervisory power over the administration of criminal justice within this Circuit." 643 F.2d, at 94. In this case the Court of Appeals described the "Maybury rule barring inconsistent verdicts in federal criminal bench trials" as "well established in this Circuit." Id., at 91. We note, however, that in none of the three cases cited for that proposition was a verdict actually overturned on the ground of inconsistency. Indeed, in one of those cases the court expressly noted that an inconsistency resulting from an acquittal that may have rested on the trial judge's erroneous view of the law could not justify reversal of the conviction. See United States v. Wilson, 342 F.2d 43, 45 (CA2 1965). In all events, the Court of Appeals noted: "To our knowledge, however, this is the first time that a habeas applicant has asked us to overturn a state conviction on the basis of the Maybury rule." 643 F.2d, at 91. In United States v. Duz-Mor Diagnostic Laboratory, Inc., 650 F.2d 223 (1981), a panel of the United States Court of Appeals for the Ninth Circuit followed the Second Circuit's reasoning in this case. 8 In Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973), with particular reference to a challenged jury instruction, the Court articulated the difference between a federal court of appeals' supervisory power over the district courts within its jurisdiction and the court of appeals' authority to grant relief under 28 U.S.C. § 2254: "Within such a unitary jurisdictional framework the appellate court will, of course, require the trial court to conform to constitutional mandates, but it may likewise require it to follow procedures deemed desirable from the viewpoint of sound judicial practice although in nowise commanded by statute or by the Constitution. Thus even substantial unanimity among federal courts of appeals that the instruction in question ought not to be given in United States district courts within their respective jurisdictions is not, without more, authority for declaring that the giving of the instruction makes a resulting conviction invalid under the Fourteenth Amendment. Before a federal court may overturn a conviction resulting from a state trial in which this instruction was used, it must be established not merely that the instruction is undesirable, erroneous, or even 'universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." It is noteworthy that the Courts of Appeals are not in agreement that the Maybury holding is an appropriate exercise of the supervisory power over federal district courts. See, e. g., United States v. West, 549 F.2d 545 (CA8), cert. denied, 430 U.S. 956, 97 S.Ct. 1601, 51 L.Ed.2d 806 (1977). 9 See Arizona v. Washington, 434 U.S. 497, 517, 98 S.Ct. 824, 835-836, 54 L.Ed.2d 717 (1978) ("Review of any trial court decision is, of course, facilitated by findings and by an explanation of the reasons supporting the decision. No matter how desirable such procedural assistance may be, it is not constitutionally mandated in a case such as this"). 10 See Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972); Wolff v. McDonnell, 418 U.S. 539, 564-565, 94 S.Ct. 2963, 2978-2979, 41 L.Ed.2d 295 (1974). 11 Moreover, when other procedural safeguards have minimized the risk of unfairness, there is a diminished justification for requiring a judge to explain his rulings. See Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 472, 101 S.Ct. 2460, 2468, 69 L.Ed.2d 158 (1981) (STEVENS, J., dissenting). 12 Our holding that the risk of constitutional error inherent in facially inconsistent bench trial verdicts is not substantial, see discussion infra, at 345-348, undercuts the initial premise of the Court of Appeals' analysis of the question whether a state prisoner is constitutionally entitled to an explanation of such verdicts. 13 Accord, Hamling v. United States, 418 U.S. 87, 101, 94 S.Ct. 2887, 2899, 41 L.Ed.2d 590 (1974). Cf. Hartzell v. United States, 322 U.S. 680, 682, n. 3, 64 S.Ct. 1233, 1234, n. 3, 88 L.Ed. 1534 (1944) (the trial court's setting aside of the conspiracy convictions of petitioner's only alleged co-conspirators "makes it impossible to sustain the petitioner's conviction upon . . . the conspiracy count"); but cf. Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980) (a defendant accused of aiding and abetting in the commission of a federal offense may be convicted after the named principal has been acquitted of that offense in a previous trial). 14 "Equally baseless is the claim of Dotterweich that, having failed to find the corporation guilty, the jury could not find him guilty. Whether the jury's verdict was the result of carelessness or compromise or a belief that the responsible individual should suffer the penalty instead of merely increasing, as it were, the cost of running the business of the corporation, is immaterial. Juries may indulge in precisely such motives or vagaries. Dunn v. United States, 284 U.S. 390 [52 S.Ct. 189, 76 L.Ed. 356]." 15 Justice Holmes' opinion in Dunn, his last for the Court, characteristically was brief and to the point. He quoted the following passage from Steckler v. United States, 7 F.2d 59, 60 (CA2 1925): " 'The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.' " Dunn v. United States, 284 U.S., at 393, 52 S.Ct., at 190. After citing Horning v. District of Columbia, 254 U.S. 135, 41 S.Ct. 53, 65 L.Ed. 185 (1920), he added: "That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters." 284 U.S., at 393-394, 52 S.Ct., at 190-191. 16 See 643 F.2d, at 94-95. 17 Cf. Arizona v. Washington, 434 U.S., at 518, 98 S.Ct., at 836 (WHITE, J., dissenting): "[In Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the] Court concluded that 'the coequal responsibilities of state and federal judges in the administration of federal constitutional law are such that we think the district judge may, in the ordinary case in which there has been no articulation, properly assume that the state trier of fact applied correct standards of federal law to the facts, in the absence of evidence . . . that there is reason to suspect that an incorrect standard was in fact applied.' Id., at 314-315, 83 S.Ct., at 757-58. A silent record is not a sufficient basis for concluding that the state judge has committed constitutional error; the mere possibility of error is not enough to warrant habeas corpus relief." 18 In fact, the New York Supreme Court Justice who tried this case stated that he had a reasonable doubt as to Robinson's guilt. 643 F.2d, at 90. 19 See n. 7, supra. 20 "The question whether the evidence is constitutionally sufficient is of course wholly unrelated to the question of how rationally the verdict was actually reached. Just as the standard announced today does not permit a court to make its own subjective determination of guilt or innocence, it does not require scrutiny of the reasoning process actually used by the factfinder—if known." Jackson v. Virginia, 443 U.S., at 319-320, n. 13, 99 S.Ct., at 2789, n. 13. 21 Cf. 643 F.2d, at 94, n. 5 (rejecting respondent's equal protection challenge to the allegedly inconsistent verdicts). See also North Carolina v. Pearce, 395 U.S. 711, 722-723, 89 S.Ct. 2072, 2079, 23 L.Ed.2d 656 (1969). Our conclusion that federal habeas corpus relief is not authorized in this case is buttressed by the practical problems with the Court of Appeals' holding even if some constitutional right of the convicted defendant were more clearly implicated. In Henderson v. Kibbe, 431 U.S. 145, 154, n. 13, 97 S.Ct. 1730, 1736, n. 13, 52 L.Ed.2d 203 (1977), we noted that such practical problems are relevant in determining whether federal habeas relief is available: "The strong interest in preserving the finality of judgments, [citations omitted], as well as the interest in orderly trial procedure, must be overcome before collateral relief can be justified. For a collateral attack may be made many years after the conviction when it may be impossible, as a practical matter, to conduct a retrial." On remand from the federal habeas court, the state trial judge, if he is still on the bench, may not remember the criminal case, much less the reasons for convicting one codefendant but acquitting another. Confronted by defense counsel's assertion that the evidence of guilt was the same for both codefendants, he may well decide that he erroneously acquitted one codefendant; such a finding would have to satisfy the federal habeas court, but would hardly placate the habeas petitioner.

01

454 U.S. 263 102 S.Ct. 269 70 L.Ed.2d 440 Gary E. WIDMAR, et al., Petitioners,v.Clark VINCENT et al. No. 80-689. Argued Oct. 6, 1981. Decided Dec. 8, 1981. Syllabus The University of Missouri at Kansas City, a state university, makes its facilities generally available for the activities of registered student groups. A registered student religious group that had previously received permission to conduct its meetings in University facilities was informed that it could no longer do so because of a University regulation prohibiting the use of University buildings or grounds "for purposes of religious worship or religious teaching." Members of the group then brought suit in Federal District Court, alleging that the regulation violated, inter alia, their rights to free exercise of religion and freedom of speech under the First Amendment. The District Court upheld the regulation as being not only justified, but required, by the Establishment Clause of the First Amendment. The Court of Appeals reversed, viewing the regulation as a content-based discrimination against religious speech, for which it could find no compelling justification, and holding that the Establishment Clause does not bar a policy of equal access, in which facilities are open to groups and speakers of all kinds. Held : The University's exclusionary policy violates the fundamental principle that a state regulation of speech should be content-neutral. Pp. 273-278. (a) Having created a forum generally open for use by student groups, the University, in order to justify discriminatory exclusion from such forum based on the religious content of a group's intended speech, must satisfy the standard of review appropriate to content-based exclusions; i. e., it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Pp. 273-274. (b) Although the University's interest in complying with its constitutional obligations under the Establishment Clause may be characterized as compelling, an "equal access" policy would not be incompatible with that Clause. A policy will not offend the Establishment Clause if it can pass the following three-pronged test: (1) It has a secular legislative purpose; (2) its principal or primary effect would be neither to advance nor to inhibit religion; and (3) it does not foster "an excessive government entanglement with religion." Here, it is conceded that an "equal access" policy would meet the first and third prongs of the test. In the context of this case and in the absence of any evidence that religious groups will dominate the University's forum, the advancement of religion would not be the forum's "primary effect." An "equal access" policy would therefore satisfy the test's second prong as well. Pp. 274-277. (c) The State's interest in achieving greater separation of church and State than is already ensured under the Establishment Clause is not sufficiently "compelling" to justify content-based discrimination against religious speech of the student group in question. Pp. 277-278. 635 F.2d 1310, affirmed. Ted D. Ayres, Columbia, Mo., for petitioners. James M. Smart, Jr., Kansas City, Mo., for respondents. Justice POWELL delivered the opinion of the court. 1 This case presents the question whether a state university, which makes its facilities generally available for the activities of registered student groups, may close its facilities to a registered student group desiring to use the facilities for religious worship and religious discussion. 2 * It is the stated policy of the University of Missouri at Kansas City1 to encourage the activities of student organizations. The University officially recognizes over 100 student groups. It routinely provides University facilities for the meetings of registered organizations. Students pay an activity fee of $41 per semester (1978-1979) to help defray the costs to the University. 3 From 1973 until 1977 a registered religious group named Cornerstone regularly sought and received permission to conduct its meetings in University facilities.2 In 1977, however, the University informed the group that it could no longer meet in University buildings. The exclusion was based on a regulation, adopted by the Board of Curators in 1972, that prohibits the use of University buildings or grounds "for purposes of religious worship or religious teaching."3 4 Eleven University students, all members of Cornerstone, brought suit to challenge the regulation in the Federal District Court for the Western District of Missouri.4 They alleged that the University's discrimination against religious activity and discussion violated their rights to free exercise of religion, equal protection, and freedom of speech under the First and Fourteenth Amendments to the Constitution of the United States. 5 Upon cross-motions for summary judgment, the District Court upheld the challenged regulation. Chess v. Widmar, 480 F.Supp. 907 (1979). It found the regulation not only justified, but required, by the Establishment Clause of the Federal Constitution. Id., at 916. Under Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971), the court reasoned, the State could not provide facilities for religious use without giving prohibited support to an institution of religion. 480 F.Supp., at 915-916. The District Court rejected the argument that the University could not discriminate against religious speech on the basis of its content. It found religious speech entitled to less protection than other types of expression. Id., at 918. 6 The Court of Appeals for the Eighth Circuit reversed. Chess v. Widmar, 635 F.2d 1310 (1980). Rejecting the analysis of the District Court, it viewed the University regulation as a content-based discrimination against religious speech, for which it could find no compelling justification. Id., at 1315-1320. The court held that the Establishment Clause does not bar a policy of equal access, in which facilities are open to groups and speakers of all kinds. Id., at 1317. According to the Court of Appeals, the "primary effect" of such a policy would not be to advance religion, but rather to further the neutral purpose of developing students' " 'social and cultural awareness as well as [their] intellectual curiosity.' " Ibid. (quoting from the University bulletin's description of the student activities program, reprinted in id., at 1312, n.1). 7 We granted certiorari. 450 U.S. 909, 101 S.Ct. 1345, 67 L.Ed.2d 332. We now affirm. II 8 Through its policy of accommodating their meetings, the University has created a forum generally open for use by student groups. Having done so, the University has assumed an obligation to justify its discriminations and exclusions under applicable constitutional norms.5 The Constitution forbids a State to enforce certain exclusions from a forum generally open to the public, even if it was not required to create the forum in the first place. See, e. g., Madison Joint School District v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 175, and n.8, 97 S.Ct. 421, 426, 50 L.Ed.2d 376 (1976) (although a State may conduct business in private session, "[w]here the State has opened a forum for direct citizen involvement," exclusions bear a heavy burden of justification); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 555-559, 95 S.Ct. 1239, 1244-1246, 43 L.Ed.2d 448 (1975) (because municipal theater was a public forum, city could not exclude a production without satisfying constitutional safeguards applicable to prior restraints). 9 The University's institutional mission, which it describes as providing a "secular education" to its students, Brief for Petitioners 44, does not exempt its actions from constitutional scrutiny. With respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities. See, e. g., Healy v. James, 408 U.S. 169, 180, 92 S.Ct. 2338, 2345, 33 L.Ed.2d 266 (1972); Tinker v. Des Moines Independent School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969); Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247, 251, 5 L.Ed.2d 231 (1960). 10 Here the UMKC has discriminated against student groups and speakers based on their desire to use a generally open forum to engage in religious worship and discussion. These are forms of speech and association protected by the First Amendment. See, e. g., Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981); Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267 (1951); Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948).6 In order to justify discriminatory exclusion from a public forum based on the religious content of a group's intended speech, the University must therefore satisfy the standard of review appropriate to content-based exclusions. It must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. See Carey v. Brown, 447 U.S. 455, 461, 464-465, 100 S.Ct. 2286, 2290, 2292, 65 L.Ed.2d 263 (1980).7 III 11 In this case the University claims a compelling interest in maintaining strict separation of church and State. It derives this interest from the "Establishment Clauses" of both the Federal and Missouri Constitutions. A. 12 The University first argues that it cannot offer its facilities to religious groups and speakers on the terms available to other groups without violating the Establishment Clause of the Constitution of the United States.8 We agree that the interest of the University in complying with its constitutional obligations may be characterized as compelling. It does not follow, however, that an "equal access" policy would be incompatible with this Court's Establishment Clause cases. Those cases hold that a policy will not offend the Establishment Clause if it can pass a three-pronged test: "First, the [governmental policy] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . .; finally, the [policy] must not foster 'an excessive government entanglement with religion.' " Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). See Committee for Public Education v. Regan, 444 U.S. 646, 653, 100 S.Ct. 840, 846, 63 L.Ed.2d 94 (1980); Roemer v. Maryland Public Works Bd., 426 U.S. 736, 748, 96 S.Ct. 2337, 2345, 49 L.Ed.2d 179 (1976). 13 In this case two prongs of the test are clearly met. Both the District Court and the Court of Appeals held that an open-forum policy, including nondiscrimination against religious speech,9 would have a secular purpose10 and would avoid entanglement with religion.11 But the District Court concluded, and the University argues here, that allowing religious groups to share the limited public forum would have the "primary effect" of advancing religion.12 14 The University's argument misconceives the nature of this case. The question is not whether the creation of a religious forum would violate the Establishment Clause. The University has opened its facilities for use by student groups, and the question is whether it can now exclude groups because of the content of their speech. See Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972).13 In this context we are unpersuaded that the primary effect of the public forum, open to all forms of discourse, would be to advance religion. 15 We are not oblivious to the range of an open forum's likely effects. It is possible—perhaps even foreseeable—that religious groups will benefit from access to University facilities. But this Court has explained that a religious organization's enjoyment of merely "incidental" benefits does not violate the prohibition against the "primary advancement" of religion. Committee for Public Education v. Nyquist, 413 U.S. 756, 771, 93 S.Ct. 2955, 2964, 37 L.Ed.2d 948 (1973); see, e. g., Roemer v. Maryland Public Works, Bd., 426 U.S. 736, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976); Hunt v. McNair, 413 U.S. 734, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973); McGowan v. Maryland, 366 U.S. 420, 422, 81 S.Ct. 1101, 1103, 6 L.Ed.2d 393 (1961). 16 We are satisfied that any religious benefits of an open forum at UMKC would be "incidental" within the meaning of our cases. Two factors are especially relevant. 17 First, an open forum in a public university does not confer any imprimatur of state approval on religious sects or practices. As the Court of Appeals quite aptly stated, such a policy "would no more commit the University . . . to religious goals" than it is "now committed to the goals of the Students for a Democratic Society, the Young Socialist Alliance," or any other group eligible to use its facilities. 635 F.2d., at 1317.14 18 Second, the forum is available to a broad class of nonreligious as well as religious speakers; there are over 100 recognized student groups at UMKC. The provision of benefits to so broad a spectrum of groups is an important index of secular effect. See, e. g., Wolman v. Walter, 433 U.S. 229, 240-241, 97 S.Ct. 2593, 2601, 53 L.Ed.2d 714 (1977); Committee for Public Education v. Nyquist, supra, at 781-782, and n.38, 93 S.Ct., at 2969-2970, and n. 38. If the Establishment Clause barred the extension of general benefits to religious groups, "a church could not be protected by the police and fire departments, or have its public sidewalk kept in repair." Roemer v. Maryland Public Works Bd., supra, at 747, 96 S.Ct., at 2345, 49 L.Ed.2d, at 2345 (plurality opinion); quoted in Committee for Public Education v. Regan, 444 U.S., at 658, n.6, 100 S.Ct., at 849, n. 6.15 At least in the absence of empirical evidence that religious groups will dominate UMKC's open forum, we agree with the Court of Appeals that the advancement of religion would not be the forum's "primary effect." B 19 Arguing that the State of Missouri has gone further than the Federal Constitution in proscribing indirect state support for religion,16 the University claims a compelling interest in complying with the applicable provisions of the Missouri Constitution.17 20 The Missouri courts have not ruled whether a general policy of accommodating student groups, applied equally to those wishing to gather to engage in religious and nonreligious speech, would offend the State Constitution. We need not, however, determine how the Missouri courts would decide this issue. It is also unnecessary for us to decide whether, under the Supremacy Clause,18 a state interest, derived from its own constitution, could ever outweigh free speech interests protected by the First Amendment. We limit our holding to the case before us. 21 On one hand, respondents' First Amendment rights are entitled to special constitutional solicitude. Our cases have required the most exacting scrutiny in cases in which a State undertakes to regulate speech on the basis of its content. See, e. g., Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). On the other hand, the state interest asserted here—in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution—is limited by the Free Exercise Clause and in this case by the Free Speech Clause as well. In this constitutional context, we are unable to recognize the State's interest as sufficiently "compelling" to justify content-based discrimination against respondents' religious speech. IV 22 Our holding in this case in no way undermines the capacity of the University to establish reasonable time, place, and manner regulations.19 Nor do we question the right of the University to make academic judgments as to how best to allocate scarce resources or "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) (Frankfurter, J., concurring in result); see University of California Regents v. Bakke, 438 U.S. 265, 312-313, 98 S.Ct. 2733, 2759-2760, 57 L.Ed.2d 750 (1978) (opinion of POWELL, J., announcing the judgment of the Court).20 Finally, we affirm the continuing validity of cases, e. g., Healy v. James, 408 U.S., at 188-189, 92 S.Ct., at 2349-2350, that recognize a University's right to exclude even First Amendment activities that violate reasonable campus rules or substantially interfere with the opportunity of other students to obtain an education. 23 The basis for our decision is narrow. Having created a forum generally open to student groups, the University seeks to enforce a content-based exclusion of religious speech. Its exclusionary policy violates the fundamental principle that a state regulation of speech should be content-neutral, and the University is unable to justify this violation under applicable constitutional standards. 24 For this reason, the decision of the Court of Appeals is 25 Affirmed. 26 Justice STEVENS, concurring in the judgment. 27 As the Court recognizes, every university must "make academic judgments as to how best to allocate scarce resources," ante, at 278. The Court appears to hold, however, that those judgments must "serve a compelling state interest" whenever they are based, even in part, on the content of speech. Ante, at 274. This conclusion apparently flows from the Court's suggestion that a student activities program—from which the public may be excluded, ante, at 273, n.5—must be managed as though it were a "public forum."1 In my opinion, the use of the terms "compelling state interest" and "public forum" to analyze the question presented in this case may needlessly undermine the academic freedom of public universities. 28 Today most major colleges and universities are operated by public authority. Nevertheless, their facilities are not open to the public in the same way that streets and parks are. University facilities—private or public—are maintained primarily for the benefit of the student body and the faculty. In performing their learning and teaching missions, the managers of a university routinely make countless decisions based on the content of communicative materials. They select books for inclusion in the library, they hire professors on the basis of their academic philosophies, they select courses for inclusion in the curriculum, and they reward scholars for what they have written. In addition, in encouraging students to participate in extracurricular activities, they necessarily make decisions concerning the content of those activities. 29 Because every university's resources are limited, an educational institution must routinely make decisions concerning the use of the time and space that is available for extracurricular activities. In my judgment, it is both necessary and appropriate for those decisions to evaluate the content of a proposed student activity. I should think it obvious, for example, that if two groups of 25 students requested the use of a room at a particular time—one to view Mickey Mouse cartoons and the other to rehearse an amateur performance of Hamlet—the First Amendment would not require that the room be reserved for the group that submitted its application first. Nor do I see why a university should have to establish a "compelling state interest" to defend its decision to permit one group to use the facility and not the other. In my opinion, a university should be allowed to decide for itself whether a program that illuminates the genius of Walt Disney should be given precedence over one that may duplicate material adequately covered in the classroom. Judgments of this kind should be made by academicians, not by federal judges,2 and their standards for decision should not be encumbered with ambiguous phrases like "compelling state interest."3 30 Thus, I do not subscribe to the view that a public university has no greater interest in the content of student activities than the police chief has in the content of a soapbox oration on Capitol Hill. A university legitimately may regard some subjects as more relevant to its educational mission than others. But the university, like the police officer, may not allow its agreement or disagreement with the viewpoint of a particular speaker to determine whether access to a forum will be granted. If a state university is to deny recognition to a student organization—or is to give it a lesser right to use school facilities than other student groups—it must have a valid reason for doing so. Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266.4 31 In this case I agree with the Court that the University has not established a sufficient justification for its refusal to allow the Cornerstone group to engage in religious worship on the campus. The primary reason advanced for the discriminatory treatment is the University's fear of violating the Establishment Clause. But since the record discloses no danger that the University will appear to sponsor any particular religion, and since student participation in the Cornerstone meetings is entirely voluntary, the Court properly concludes that the University's fear is groundless. With that justification put to one side, the University has not met the burden that is imposed on it by Healy. 32 Nor does the University's reliance on the Establishment Clause of the Missouri State Constitution provide a sufficient justification for the discriminatory treatment in this case.5 As I have said, I believe that the University may exercise a measure of control over the agenda for student use of school facilities, preferring some subjects over others, without needing to identify so-called "compelling state interests." Quite obviously, however, the University could not allow a group of Republicans or Presbyterians to meet while denying Democrats or Mormons the same privilege.6 It seems apparent that the policy under attack would allow groups of young philosophers to meet to discuss their skepticism that a Supreme Being exists, or a group of political scientists to meet to debate the accuracy of the view that religion is the "opium of the people." If school facilities may be used to discuss anticlerical doctrine, it seems to me that comparable use by a group desiring to express a belief in God must also be permitted. The fact that their expression of faith includes ceremonial conduct is not, in my opinion, a sufficient reason for suppressing their discussion entirely. 33 Accordingly, although I do not endorse the Court's reasoning, I concur in its judgment. 34 Justice WHITE, dissenting. 35 In affirming the decision of the Court of Appeals, the majority rejects petitioners' argument that the Establishment Clause of the Constitution prohibits the use of university buildings for religious purposes. A state university may permit its property to be used for purely religious services without violating the First and Fourteenth Amendments. With this I agree. See Committee for Public Education v. Nyquist, 413 U.S. 756, 813, 93 S.Ct. 2955, 2982, 37 L.Ed.2d 948 (1973) (WHITE, J., dissenting); Lemon v. Kurtzman, 403 U.S. 602, 661, 91 S.Ct. 2105, 2135, 29 L.Ed.2d 745 (1971) (opinion of WHITE, J.). The Establishment Clause, however, sets limits only on what the State may do with respect to religious organizations; it does not establish what the State is required to do. I have long argued that Establishment Clause limits on state action which incidentally aids religion are not as strict as the Court has held. The step from the permissible to the necessary, however, is a long one. In my view, just as there is room under the Religion Clauses for state policies that may have some beneficial effect on religion, there is also room for state policies that may incidentally burden religion. In other words, I believe the States to be a good deal freer to formulate policies that affect religion in divergent ways than does the majority. See Sherbert v. Verner, 374 U.S. 398, 422-423, 83 S.Ct. 1790, 1803-1804, 10 L.Ed.2d 965 (1963) (Harlan, J., dissenting). The majority's position will inevitably lead to those contradictions and tensions between the Establishment and Free Exercise Clauses warned against by Justice Stewart in Sherbert v. Verner, supra, at 416, 83 S.Ct., at 1800. 36 The University regulation at issue here provides in pertinent part: 37 "No University buildings or grounds (except chapels as herein provided) may be used for purposes of religious worship or religious teaching by either student or nonstudent groups. Student congregations of local churches or of recognized denominations or sects, although not technically recognized campus groups, may use the facilities . . . under the same regulations that apply to recognized campus organizations, provided that no University facilities may be used for purposes of religious worship or religious teaching." 38 Although there may be instances in which it would be difficult to determine whether a religious group used university facilities for "worship" or "religious teaching," rather than for secular ends, this is not such a case. The regulation was applied to respondents' religious group, Cornerstone, only after the group explicitly informed the University that it sought access to the facilities for the purpose of offering prayer, singing hymns, reading scripture, and teaching biblical principles. Cornerstone described their meetings as follows: "Although these meetings would not appear to a casual observer to correspond precisely to a traditional worship service, there is no doubt that worship is an important part of the general atmosphere." Chess v. Widmar, 480 F.Supp. 907, 910 (1979).1 The issue here is only whether the University regulation as applied and interpreted in this case is impermissible under the Federal Constitution. If it is impermissible, it is because it runs afoul of either the Free Speech or the Free Exercise Clause of the First Amendment. 39 A large part of respondents' argument, accepted by the court below and accepted by the majority, is founded on the proposition that because religious worship uses speech, it is protected by the Free Speech Clause of the First Amendment.2 Not only is it protected, they argue, but religious worshipqua speech is not different from any other variety of protected speech as a matter of constitutional principle. I believe that this proposition is plainly wrong. Were it right, the Religion Clauses would be emptied of any independent meaning in circumstances in which religious practice took the form of speech. 40 Although the majority describes this argument as "novel," ante, at 274, n.6, I believe it to be clearly supported by our previous cases. Just last Term, the Court found it sufficiently obvious that the Establishment Clause prohibited a State from posting a copy of the Ten Commandments on the classroom wall that a statute requiring such a posting was summarily struck down. Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980). That case necessarily presumed that the State could not ignore the religious content of the written message, nor was it permitted to treat that content as it would, or must, treat, other secular—messages under the First Amendment's protection of speech. Similarly, the Court's decisions prohibiting prayer in the public schools rest on a content-based distinction between varieties of speech: as a speech act, apart from its content, a prayer is indistinguishable from a biology lesson. See Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). Operation of the Free Exercise Clause is equally dependent, in certain circumstances, on recognition of a content-based distinction between religious and secular speech. Thus, in Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961), the Court struck down, as violative of the Free Exercise Clause, a state requirement that made a declaration of belief in God a condition of state employment. A declaration is again a speech act, but it was the content of the speech that brought the case within the scope of the Free Exercise Clause. 41 If the majority were right that no distinction may be drawn between verbal acts of worship and other verbal acts, all of these cases would have to be reconsidered. Although I agree that the line may be difficult to draw in many cases, surely the majority cannot seriously suggest that no line may ever be drawn.3 If that were the case, the majority would have to uphold the University's right to offer a class entitled "Sunday Mass." Under the majority's view, such a class would be as a matter of constitutional principle—indistinguishable from a class entitled "The History of the Catholic Church."4 42 There may be instances in which a State's attempt to disentangle itself from religious worship would intrude upon secular speech about religion. In such a case, the State's action would be subject to challenge under the Free Speech Clause of the First Amendment. This is not such a case. This case involves religious worship only; the fact that that worship is accomplished through speech does not add anything to respondents' argument. That argument must rely upon the claim that the State's action impermissibly interferes with the free exercise of respondents' religious practices. Although this is a close question, I conclude that it does not. 43 Plausible analogies on either side suggest themselves. Respondents argue, and the majority agrees, that by permitting any student group to use its facilities for communicative purposes other than religious worship, the University has created a "public forum." Ante, at 273. With ample support, they argue that the State may not make content-based distinctions as to what groups may use, or what messages may be conveyed in, such a forum. See Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). The right of the religious to nondiscriminatory access to the public forum is well established. See Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267 (1951); Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943). Moreover, it is clear that there are bounds beyond which the University could not go in enforcing its regulation: I do not suppose it could prevent students from saying grace before meals in the school cafeteria, or prevent distribution of religious literature on campus.5 44 Petitioners, on the other hand, argue that allowing use of their facilities for religious worship is constitutionally indistinguishable from directly subsidizing such religious services: It would "fun[d] a specifically religious activity in an otherwise substantially secular setting." Hunt v. McNair, 413 U.S. 734, 743, 93 S.Ct. 2868, 2874, 37 L.Ed.2d 923 (1973). They argue that the fact that secular student groups are entitled to the in-kind subsidy at issue here does not establish that a religious group is entitled to the same subsidy. They could convincingly argue, for example, that a state university that pays for basketballs for the basketball team is not thereby required to pay for Bibles for a group like Cornerstone.6 45 A third analogy suggests itself, one that falls between these two extremes. There are a variety of state policies which incidentally benefit religion that this Court has upheld without implying that they were constitutionally required of the State. See Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968) (state loan of textbooks to parochial school students); Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952) (release of students from public schools, during school hours, to perform religious activities away from the school grounds); Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947) (state provision of transportation to parochial school students). Provision of university facilities on a uniform basis to all student groups is not very different from provision of textbooks or transportation. From this perspective the issue is not whether the State must, or must not, open its facilities to religious worship; rather, it is whether the State may choose not to do so. 46 Each of these analogies is persuasive. Because they lead to different results, however, they are of limited help in reaching a decision here. They also demonstrate the difficulty in reconciling the various interests expressed in the Religion Clauses. In my view, therefore, resolution of this case is best achieved by returning to first principles. This requires an assessment of the burden on respondents' ability freely to exercise their religious beliefs and practices and of the State's interest in enforcing its regulation. 47 Respondents complain that compliance with the regulation would require them to meet "about a block and a half" from campus under conditions less comfortable than those previously available on campus.7 I view this burden on free exercise as minimal. Because the burden is minimal, the State need do no more than demonstrate that the regulation furthers some permissible state end. The State's interest in avoiding claims that it is financing or otherwise supporting religious worship—in maintaining a definitive separation between church and State—is such an end. That the State truly does mean to act toward this end is amply supported by the treatment of religion in the State Constitution.8 Thus, I believe the interest of the state is sufficiently strong to justify the imposition of the minimal burden on respondents' ability freely to exercise their religious beliefs. 48 On these facts, therefore, I cannot find that the application of the regulation to prevent Cornerstone from holding religious worship services in University facilities violates the First and Fourteenth Amendments. I would not hold as the majority does that if a university permits students and others to use its property for secular purposes, it must also furnish facilities to religious groups for the purposes of worship and the practice of their religion. Accordingly, I would reverse the judgment of the Court of Appeals. 1 The University of Missouri at Kansas City (UMKC) is one of four campuses of the University of Missouri, an institution of the State of Missouri. 2 Cornerstone is an organization of evangelical Christian students from various denominational backgrounds. According to an affidavit filed in 1977, "perhaps twenty students . . . participate actively in Cornerstone and form the backbone of the campus organization." Affidavit of Florian Chess (Sept. 29, 1977), quoted in Chess v. Widmar, 480 F.Supp. 907, 911 (WD Mo.1979). Cornerstone held its on-campus meetings in classrooms and in the student center. These meetings were open to the public and attracted up to 125 students. A typical Cornerstone meeting included prayer, hymns, Bible commentary, and discussion of religious views and experiences. 3 The pertinent regulations provide as follows: "4.0314.0107 No University buildings or grounds (except chapels as herein provided) may be used for purposes of religious worship or religious teaching by either student or nonstudent groups. . . . The general prohibition against use of University buildings and grounds for religious worship or religious teaching is a policy required, in the opinion of The Board of Curators, by the Constitution and laws of the State and is not open to any other construction. No regulations shall be interpreted to forbid the offering of prayer or other appropriate recognition of religion at public functions held in University facilities. . . . "4.0314.0108 Regular chapels established on University grounds may be used for religious services but not for regular recurring services of any groups. Special rules and procedures shall be established for each such chapel by the Chancellor. It is specifically directed that no advantage shall be given to any religious group." There is no chapel on the campus of the UMKC. The nearest University chapel is at the Columbia campus, approximately 125 miles east of UMKC. Although the University had routinely approved Cornerstone meetings before 1977, the District Court found that University officials had never "authorized a student organization to utilize a University facility for a meeting where they had full knowledge that the purposes of the meeting include[d] religious worship or religious teaching." Chess v. Widmar, supra, at 910. 4 Respondent Clark Vincent and Florian Chess, a named plaintiff in the action in the District Court, were among the students who initiated the action on October 13, 1977. Named as defendants were the petitioner Gary Widmar, the Dean of Students at UMKC, and the University's Board of Curators. 5 This Court has recognized that the campus of a public university, at least for its students, possesses many of the characteristics of a public forum. See generally Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). "The college classroom with its surrounding environs is peculiarly 'the marketplace of ideas.' " Healy v. James, 408 U.S. 169, 180, 92 S.Ct. 2338, 2345, 33 L.Ed.2d 266 (1972). Moreover, the capacity of a group or individual "to participate in the intellectual give and take of campus debate . . . [would be] limited by denial of access to the customary media for communicating with the administration, faculty members, and other students." Id., at 181-182, 92 S.Ct., at 2346. We therefore have held that students enjoy First Amendment rights of speech and association on the campus, and that the "denial [to particular groups] of use of campus facilities for meetings and other appropriate purposes" must be subjected to the level of scrutiny appropriate to any form of prior restraint. Id., at 181, 184, 92 S.Ct., at 2346, 2347. At the same time, however, our cases have recognized that First Amendment rights must be analyzed "in light of the special characteristics of the school environment." Tinker v. Des Moines Independent School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). We continue to adhere to that view. A university differs in significant respects from public forums such as streets or parks or even municipal theaters. A university's mission is education, and decisions of this Court have never denied a university's authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities. We have not held, for example, that a campus must make all of its facilities equally available to students and nonstudents alike, or that a university must grant free access to all of its grounds or buildings. 6 The dissent argues that "religious worship" is not speech generally protected by the "free speech" guarantee of the First Amendment and the "equal protection" guarantee of the Fourteenth Amendment. If "religious worship" were protected "speech," the dissent reasons, "the Religion Clauses would be emptied of any independent meaning in circumstances in which religious practice took the form of speech." Post, at 282. This is a novel argument. The dissent does not deny that speech about religion is speech entitled to the general protections of the First Amendment. See post, at 281-282, and n.2, 283. It does not argue that descriptions of religious experiences fail to qualify as "speech." Nor does it repudiate last Term's decision in Heffron v. International Society for Krishna Consciousness, Inc., which assumed that religious appeals to nonbelievers constituted protected "speech." Rather, the dissent seems to attempt a distinction between the kinds of religious speech explicitly protected by our cases and a new class of religious "speech act[s]," post, at 282, constituting "worship." There are at least three difficulties with this distinction. First, the dissent fails to establish that the distinction has intelligible content. There is no indication when "singing hymns, reading scripture, and teaching biblical principles," post, at 281, cease to be "singing, teaching, and reading"—all apparently forms of "speech," despite their religious subject matter—and become unprotected "worship." Second, even if the distinction drew an arguably principled line, it is highly doubtful that it would lie within the judicial competence to administer. Cf. Fowler v. Rhode Island, 345 U.S. 67, 70, 73 S.Ct. 526, 527, 97 L.Ed. 828 (1953). Merely to draw the distinction would require the university—and ultimately the courts—to inquire into the significance of words and practices to different religious faiths, and in varying circumstances by the same faith. Such inquiries would tend inevitably to entangle the State with religion in a manner forbidden by our cases. E. g., Walz v. Tax Comm'n, 397 U.S. 664, 668, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970). Finally, the dissent fails to establish the relevance of the distinction on which it seeks to rely. The dissent apparently wishes to preserve the vitality of the Establishment Clause. See post, at 282. But it gives no reason why the Establishment Clause, or any other provision of the Constitution, would require different treatment for religious speech designed to win religious converts, see Heffron, supra, than for religious worship by persons already converted. It is far from clear that the State gives greater support in the latter case than in the former. 7 See also Healy v. James, supra, at 184, 92 S.Ct., at 2347: "It is to be remembered that the effect of the College's denial of recognition was a form of prior restraint, denying to petitioners' organization the range of associational activities described above. While a college has a legitimate interest in preventing disruption on the campus, which . . . may justify such restraint, a 'heavy burden' rests on the college to demonstrate the appropriateness of that action." 8 "Congress shall make no law respecting an establishment of religion. . . ." U.S.Const., Amdt. 1. The Establishment Clause has been made applicable to the States through the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). 9 As the dissent emphasizes, the Establishment Clause requires the State to distinguish between "religious" speech speech, undertaken or approved by the State, the primary effect of which is to support an establishment of religion—and "nonreligious" speech—speech, undertaken or approved by the State, the primary effect of which is not to support an establishment of religion. This distinction is required by the plain text of the Constitution. It is followed in our cases. E. g., Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980). The dissent attempts to equate this distinction with its view of an alleged constitutional difference between religious "speech" and religious "worship." See post, at 282, and n.3. We think that the distinction advanced by the dissent lacks a foundation in either the Constitution or in our cases, and that it is judicially unmanageable. 10 It is the avowed purpose of UMKC to provide a forum in which students can exchange ideas. The University argues that use of the forum for religious speech would undermine this secular aim. But by creating a forum the University does not thereby endorse or promote any of the particular ideas aired there. Undoubtedly many views are advocated in the forum with which the University desires no association. Because this case involves a forum already made generally available to student groups, it differs from those cases in which this Court has invalidated statutes permitting school facilities to be used for instruction by religious groups, but not by others. See, e. g., McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948). In those cases the school may appear to sponsor the views of the speaker. 11 We agree with the Court of Appeals that the University would risk greater "entanglement" by attempting to enforce its exclusion of "religious worship" and "religious speech." See Chess v. Widmar, 635 F.2d 1310, 1318 (CA8 1980). Initially, the University would need to determine which words and activities fall within "religious worship and religious teaching." This alone could prove "an impossible task in an age where many and various beliefs meet the constitutional definition of religion." O'Hair v. Andrus, 198 U.S.App.D.C. 198, 203, 613 F.2d 931, 936 (1979) (footnote omitted); see L. Tribe, American Constitutional Law § 14-6 (1978). There would also be a continuing need to monitor group meetings to ensure compliance with the rule. 12 In finding that an "equal access" policy would have the primary effect of advancing religion, the District Court in this case relied primarily on Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971). In Tilton this Court upheld the grant of federal financial assistance to sectarian colleges for secular purposes, but circumscribed the terms of the grant to ensure its constitutionality. Although Congress had provided that federally subsidized buildings could not be used for sectarian or religious worship for 20 years, the Court considered this restriction insufficient: "If, at the end of 20 years, the building is, for example, converted into a chapel or otherwise used to promote religious interests, the original federal grant will in part have the [constitutionally impermissible] effect of advancing religion." Id., at 683, 91 S.Ct., at 2098. From this statement the District Court derived the proposition that state funds may not be used to provide or maintain buildings used by religious organizations. We do not believe that Tilton can be read so broadly. In Tilton the Court was concerned that a sectarian institution might convert federally funded buildings to religious uses or otherwise stamp them with the imprimatur of religion. But nothing in Tilton suggested a limitation on the State's capacity to maintain forums equally open to religious and other discussions. Cases before and after Tilton have acknowledged the right of religious speakers to use public forums on equal terms with others. See, e. g., Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981); Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948). 13 This case is different from the cases in which religious groups claim that the denial of facilities not available to other groups deprives them of their rights under the Free Exercise Clause. Here, the University's forum is already available to other groups, and respondents' claim to use that forum does not rest solely on rights claimed under the Free Exercise Clause. Respondents' claim also implicates First Amendment rights of speech and association, and it is on the bases of speech and association rights that we decide the case. Accordingly, we need not inquire into the extent, if any, to which free exercise interests are infringed by the challenged University regulation. Neither do we reach the questions that would arise if state accommodation of free exercise and free speech rights should, in a particular case, conflict with the prohibitions of the Establishment Clause. 14 University students are, of course, young adults. They are less impressionable than younger students and should be able to appreciate that the University's policy is one of neutrality toward religion. See Tilton v. Richardson, supra, at 685-686, 91 S.Ct., at 2099. The University argues that the Cornerstone students themselves admitted in affidavits that "[s]tudents know that if something is on campus, then it is a student organization, and they are more likely to feel comfortable attending a meeting." Affidavit of Florian Frederick Chess, App. 18, 19. In light of the large number of groups meeting on campus, however, we doubt students could draw any reasonable inference of University support from the mere fact of a campus meeting place. The University's student handbook already notes that the University's name will not "be identified in any way with the aims, policies, programs, products, or opinions of any organization or its members." 1980-1981 UMKC Student Handbook 25. 15 This Court has similarly rejected "the recurrent argument that all aid [to parochial schools] is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends." Hunt v. McNair, 413 U.S. 734, 743, 93 S.Ct. 2868, 2874, 37 L.Ed.2d 923 (1973). 16 See, e. g., Americans United v. Rogers, 538 S.W.2d 711, 720 (Mo.) (en banc) (holding Missouri Constitution requires stricter separation of church and State than does Federal Constitution), cert. denied, 429 U.S. 1029, 97 S.Ct. 653, 50 L.Ed.2d 632 (1976); Harfst v. Hoegen, 349 Mo. 808, 815-816, 163 S.W.2d 609, 613-614 (1942) (en banc) (same). 17 See Mo.Const., Art. 1, §§ 6, 7; Art. 9, § 8. In Luetkemeyer v. Kaufmann, 364 F.Supp. 376 (WD Mo.1973), aff'd, 419 U.S. 888, 95 S.Ct. 167, 42 L.Ed.2d 134 (1974), the District Court found Missouri had a compelling interest in compliance with its own Constitution. 18 U.S.Const., Art. VI, cl. 2. 19 See, e. g., Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972) ("The nature of a place, 'the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable,' " quoting Wright, The Constitution on the Campus, 22 Vand.L.Rev. 1027, 1042 (1969)). 20 In his opinion concurring in the judgment, post, at 278, Justice STEVENS expresses concern that use of the terms "compelling state interest" and "public forum" may "undermine the academic freedom of public universities." As the text above makes clear, this concern is unjustified. See also n.5, supra. Our holding is limited to the context of a public forum created by the University itself. 1 As stated by the Court, "[i]n order to justify discriminatory exclusion from a public forum based on the religious content of a group's intended speech, the University must therefore satisfy the standard of review appropriate to content-based exclusions." Ante, at 274. See also ante, at this page, n.20 ("Our holding is limited to the context of a public forum created by the University itself"). 2 In Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311, Justice Frankfurter forcefully spoke of "the grave harm resulting from governmental intrusion into the intellectual life of a university. . . ." Id., at 261, 77 S.Ct., at 1217 (concurring in result). Justice Frankfurter quoted with approval portions of an address by T. H. Huxley: " '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.' " Id., at 263, 77 S.Ct., at 1218. Although these comments were not directed at a public university's concern with extracurricular activities, it is clear that the "atmosphere" of a university includes such a critical aspect of campus life. See also University of California Regents v. Bakke, 438 U.S. 265, 312, 98 S.Ct. 2733, 2759, 57 L.Ed.2d 750 (opinion of POWELL, J.) ("Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment"); Note, Academic Freedom and Federal Regulation of University Hiring, 92 Harv.L.Rev. 879 (1979). Cf. Van Alstyne, The Specific Theory of Academic Freedom and the General Issue of Civil Liberty, reprinted in The Concept of Academic Freedom 59, 77-81 (E. Pincoffs ed. 1972). 3 In Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230, Justice BLACKMUN expressed concern 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.' 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." Id., at 188-189, 99 S.Ct., at 992 (concurring opinion) (citation omitted). 4 In Healy, the Court stated: "The opinions below also assumed that petitioners had the burden of showing entitlement to recognition by the College. While petitioners have not challenged the procedural requirement that they file an application in conformity with the rules of the College, they do question the view of the courts below that final rejection could rest on their failure to convince the administration that their organization was unaffiliated with the National [Students for a Democratic Society]. For reasons to be stated later in this opinion, we do not consider the issue of affiliation to be a controlling one. But, apart from any particular issue, once petitioners had filed an application in conformity with the requirements, the burden was upon the College administration to justify its decision of rejection. It is to be remembered that the effect of the College's denial of recognition was a form of prior restraint, denying to petitioners' organization the range of associational activities described above. While a college has a legitimate interest in preventing disruption on the campus, which under circumstances requiring the safeguarding of that interest may justify such restraint, a 'heavy burden' rests on the college to demonstrate the appropriateness of that action." 408 U.S., at 183-184, 92 S.Ct., at 2347 (footnotes and citations omitted). 5 The University's asserted determination to keep Church and State completely separate, pursuant to the alleged dictates of the Missouri Constitution, is not without qualification. The very regulations at issue provide that "[n]o regulations shall be interpreted to forbid the offering of prayer or other appropriate recognition of religion at public functions held in University facilities. . . ." See ante, at 272, n.3. 6 See Farber, Content Regulation and the First Amendment: A Revisionist View, 68 Geo.L.J. 727 (1980). 1 Cornerstone was denied access to University facilities because it intended to use those facilities for regular religious services in which "worship is an important part of the general atmosphere." There is no issue here as to the application of the regulation to "religious teaching." Reaching this issue is particularly inappropriate in this case because nothing in the record indicates how the University has interpreted the phrase "religious teaching" or even whether it has ever been applied to activity that was not clearly "religious worship." The District Court noted that plaintiffs did not contend that they were "limited, in any way, from holding on-campus meetings that do not include religious worship services." 480 F.Supp., at 913. At oral argument, counsel for the University indicated that the regulation would not bar discussion of biblical texts under circumstances that did not constitute "religious worship." Tr. Oral Arg. 9. The sole question in this case involves application of the regulation to prohibit regular religious worship services in University buildings. 2 Given that the majority's entire argument turns on this description of religious services as speech, it is surprising that the majority assumes this proposition to require no argument. The majority assumes the conclusion by describing the University's action as discriminating against "speakers based on their desire to . . . engage in religious worship and discussion." Ante, at 274. As noted above, it is not at all clear that the University has discriminated or intends to discriminate against "religious discussion"—as a preliminary matter, it is not even clear what the majority means by "religious discussion" or how it entered the case. That religious worship is a form of speech, the majority takes to have been established by three cases. Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981); Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267 (1951); Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948). None of these cases stand for this proposition. Heffron and Saia involved the communication of religious views to a nonreligious, public audience. Talk about religion and about religious beliefs, however, is not the same as religious services of worship. Niemotko was an equal protection challenge to a discriminatory denial of one religious group's access to a public park. The Court specifically stated that it was not addressing the question of whether the State could uniformly deny all religious groups access to public parks. 340 U.S., at 272, 71 S.Ct., at 327. 3 Indeed, while footnote 6 of the majority opinion suggests that no intelligible distinction may be drawn between worship and other forms of speech, footnote 9 recognizes that the Establishment Clause "requires" that such a line be drawn. The majority does not adequately explain why the State is "required" to observe a line in one context, but prohibited from voluntarily recognizing it in another context. 4 Counsel for respondents was somewhat more forthright in recognizing the extraordinary breadth of his argument, than is the majority. Counsel explicitly stated that once the distinction between speech and worship is collapsed a university that generally provides student groups access to its facilities would be constitutionally required to allow its facilities to be used as a church for the purpose of holding "regular church services." Tr. of Oral Arg. 26. Similarly, although the majority opinion limits its discussion to student groups, counsel for respondents recognized that the First Amendment argument relied upon would apply equally to nonstudent groups. He recognized that respondents' submission would require the University to make available its buildings to the Catholic Church and other denominations for the purpose of holding religious services, if University facilities were made available to nonstudent groups. Id., at 39. In other words, the University could not avoid the conversion of one of its buildings into a church, as long as the religious group meets the same neutral requirements of entry—e. g., rent—as are imposed on other groups. 5 There are obvious limits on the scope of this analogy. I know of no precedent holding that simply because a public forum is open to all kinds of speech—including speech about religion—it must be open to regular religious worship services as well. I doubt that the State need stand by and allow its public forum to become a church for any religious sect that chooses to stand on its right of access to that forum. 6 There are, of course, limits to this subsidy argument. Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and Thomas v. Indiana Employment Security Division, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981), demonstrate that in certain circumstances the State may be required to "subsidize," at least indirectly, religious practices, under circumstances in which it does not and need not subsidize similar behavior founded on secular motives. 7 Respondents also complain that the University action has made their religious message less attractive by suggesting that it is not appropriate fare for the college campus. I give no weight to this because it is indistinguishable from an argument that respondents are entitled to the appearance of an endorsement of their beliefs and practices from the University. 8 Since 1820, the Missouri Constitution has contained provisions requiring a separation of church and State. The Missouri Supreme Court has held that the state constitutional provisions are "not only more explicit but more restrictive than the Establishment Clause of the United States Constitution." Paster v. Tussey, 512 S.W.2d 97, 102 (Mo.1974).

23

454 U.S. 235 102 S.Ct. 252 70 L.Ed.2d 419 PIPER AIRCRAFT COMPANY, Petitioner,v.Gaynell REYNO, Personal Representative of the Estate of William Fehilly, et al. HARTZELL PROPELLER, INC., Petitioner, v. Gaynell REYNO, Personal Representative of the Estate of William Fehilly, et al. Nos. 80-848, 80-883. Argued Oct. 14, 1981. Decided Dec. 8, 1981. Rehearing Denied Jan. 25, 1982. See 455 U.S. 928, 102 S.Ct. 1296. Syllabus ¢s235¢s Respondent, as representative of the estates of several citizens and residents of Scotland who were killed in an airplane crash in Scotland during a charter flight, instituted wrongful-death litigation in a California state court against petitioners, which are the company that manufactured the plane in Pennsylvania and the company that manufactured the plane's propellers in Ohio. At the time of the crash the plane was registered in Great Britain and was owned and operated by companies organized in the United Kingdom. The pilot and all of the decedents' heirs and next of kin were Scottish subjects and citizens, and the investigation of the accident was conducted by British authorities. Respondent sought to recover from petitioners on the basis of negligence or strict liability (not recognized by Scottish law), and admitted that the action was filed in the United States because its laws regarding liability, capacity to sue, and damages are more favorable to respondent's position than those of Scotland. On petitioners' motion, the action was removed to a Federal District Court in California and was then transferred to the United States District Court for the Middle District of Pennsylvania, pursuant to 28 U.S.C. § 1404(a). The District Court granted petitioners' motion to dismiss the action on the ground of forum non conveniens. Relying on the test set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055, and analyzing the "private interest factors" affecting the litigants' convenience and the "public interest factors" affecting the the forum's convenience, as set forth in Gilbert, the District Court concluded that Scotland was the appropriate forum. However, the Court of Appeals reversed, holding that the District Court had abused its discretion in conducting the Gilbert analysis and that, in any event, dismissal is automatically barred where the law of the alternative forum is less favorable to the plaintiff than the law of the forum chosen by the plaintiff. Held : 1. Plaintiffs may not defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the chosen forum. The possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry. Canada Malting Co. v. Paterson Steamships, Ltd., 285 U.S. 413, 52 S.Ct. 413, 76 L.Ed. 837. Pp. 247-255. (a) Under Gilbert, supra, dismissal will ordinarily be appropriate where trial in the plaintiff's chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice. If substantial weight were given to the possibility of an unfavorable change in law, however, dismissal might be barred even where trial in the chosen forum was plainly inconvenient, and the forum non conveniens doctrine would become virtually useless. Such an approach not only would be inconsistent with the purpose of the forum non conveniens doctrine, but also would pose substantial practical problems, requiring that trial courts determine complex problems in conflict of laws and comparative law, and increasing the flow into American courts of litigation by foreign plaintiffs against American manufacturers. Pp. 248-252. (b) Nor may an analogy be drawn between forum non conveniens dismissals and transfers between federal courts pursuant to 28 U.S.C. § 1404(a), which was construed in Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945, as precluding a transfer if it resulted in a change in the applicable law. The statute was enacted to permit change of venue between federal courts, and although it was drafted in accordance with the doctrine of forum non conveniens, it was intended to be a revision rather than a codification of the common law. District courts were given more discretion to transfer under § 1404(a) than they had to dismiss on grounds of forum non conveniens. Van Dusen v. Barrack, supra, distinguished. Pp. 253-254. 2. The District Court properly decided that the presumption in favor of the plaintiff's forum choice applied with less than maximum force when the plaintiff or (as here) the real parties in interest are foreign. When the plaintiff has chosen the home forum, it is reasonable to assume that the choice is convenient; but when the plaintiff or real parties in interest are foreign, this assumption is much less reasonable and the plaintiff's choice deserves less deference. Pp. 255-256. 3. The forum non conveniens determination is committed to the trial court's sound discretion and may be reversed only when there has been a clear abuse of discretion. Here, the District Court did not abuse its discretion in weighing the private and public interests under the Gilbert analysis and thereby determining that the trial should be held in Scotland. Pp. 257-261. (a) In analyzing the private interest factors, the District Court did not act unreasonably in concluding that fewer evidentiary problems would be posed if the trial were held in Scotland, a large proportion of the relevant evidence being located there. The District Court also correctly concluded that the problems posed by the petitioners' inability to implead potential Scottish third-party defendants—the pilot's estate, the plane's owners, and the charter company—supported holding the trial in Scotland. Pp. 257-259. (b) The District Court's review of the factors relating to the public interest was also reasonable. Even aside from the question whether Scottish law might be applicable in part, all other public interest factors favor trial in Scotland, which has a very strong interest in this litigation. The accident occurred there, all of the decedents were Scottish, and apart from petitioners, all potential parties are either Scottish or English. As to respondent's argument that American citizens have an interest in ensuring that American manufacturers are deterred from producing defective products and that additional deterrence might be obtained by trial in the United States where they could be sued on the basis of both negligence and strict liability, any incremental deterrence from trial in an American court is likely to be insignificant and is not sufficient to justify the enormous commitment of judicial time and resources that would be required. Pp. 259-261. 630 F.2d 149, 3rd Cir. reversed. James M. FitzSimons, New York City, for Piper Aircraft. Warner W. Gardner, Washington, D. C., for Hartzell Propeller, Inc. Daniel C. Cathcart, Los Angeles, Cal., for respondents. Justice MARSHALL delivered the opinion of the Court. 1 These cases arise out of an air crash that took place in Scotland. Respondent, acting as representative of the estates of several Scottish citizens killed in the accident, brought wrongful-death actions against petitioners that were ultimately transferred to the United States District Court for the Middle District of Pennsylvania. Petitioners moved to dismiss on the ground of forum non conveniens. After noting that an alternative forum existed in Scotland, the District Court granted their motions. 479 F.Supp. 727 (1979). The United States Court of Appeals for the Third Circuit reversed. 630 F.2d 149 (1980). The Court of Appeals based its decision, at least in part, on the ground that dismissal is automatically barred where the law of the alternative forum is less favorable to the plaintiff than the law of the forum chosen by the plaintiff. Because we conclude that the possibility of an unfavorable change in law should not, by itself, bar dismissal, and because we conclude that the District Court did not otherwise abuse its discretion, we reverse. 2 * A. 3 In July 1976, a small commercial aircraft crashed in the Scottish highlands during the course of a charter flight from Blackpool to Perth. The pilot and five passengers were killed instantly. The decedents were all Scottish subjects and residents, as are their heirs and next of kin. There were no eyewitnesses to the accident. At the time of the crash the plane was subject to Scottish air traffic control. 4 The aircraft, a twin-engine Piper Aztec, was manufactured in Pennsylvania by petitioner Piper Aircraft Co. (Piper). The propellers were manufactured in Ohio by petitioner Hartzell Propeller, Inc. (Hartzell). At the time of the crash the aircraft was registered in Great Britain and was owned and maintained by Air Navigation and Trading Co., Ltd. (Air Navigation). It was operated by McDonald Aviation, Ltd. (McDonald), a Scottish air taxi service. Both Air Navigation and McDonald were organized in the United Kingdom. The wreckage of the plane is now in a hangar in Farnsborough, England. 5 The British Department of Trade investigated the accident shortly after it occurred. A preliminary report found that the plane crashed after developing a spin, and suggested that mechanical failure in the plane or the propeller was responsible. At Hartzell's request, this report was reviewed by a three-member Review Board, which held a 9-day adversary hearing attended by all interested parties. The Review Board found no evidence of defective equipment and indicated that pilot error may have contributed to the accident. The pilot, who had obtained his commercial pilot's license only three months earlier, was flying over high ground at an altitude considerably lower than the minimum height required by his company's operations manual. 6 In July 1977, a California probate court appointed respondent Gaynell Reyno administratrix of the estates of the five passengers. Reyno is not related to and does not know any of the decedents or their survivors; she was a legal secretary to the attorney who filed this lawsuit. Several days after her appointment, Reyno commenced separate wrongfuldeath actions against Piper and Hartzell in the Superior Court of California, claiming negligence and strict liability.1 Air Navigation, McDonald, and the estate of the pilot are not parties to this litigation. The survivors of the five passengers whose estates are represented by Reyno filed a separate action in the United Kingdom against Air Navigation, McDonald, and the pilot's estate.2 Reyno candidly admits that the action against Piper and Hartzell was filed in the United States because its laws regarding liability, capacity to sue, and damages are more favorable to her position than are those of Scotland. Scottish law does not recognize strict liability in tort. Moreover, it permits wrongful-death actions only when brought by a decedent's relatives. The relatives may sue only for "loss of support and society."3 7 On petitioners' motion, the suit was removed to the United States District Court for the Central District of California. Piper then moved for transfer to the United States District Court for the Middle District of Pennsylvania, pursuant to 28 U.S.C. § 1404(a).4 Hartzell moved to dismiss for lack of personal jurisdiction, or in the alternative, to transfer.5 In December 1977, the District Court quashed service on Hartzell and transferred the case to the Middle District of Pennsylvania. Respondent then properly served process on Hartzell. B 8 In May 1978, after the suit had been transferred, both Hartzell and Piper moved to dismiss the action on the ground of forum non conveniens. The District Court granted these motions in October 1979. It relied on the balancing test set forth by this Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), and its companion case, Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947). In those decisions, the Court stated that a plaintiff's choice of forum should rarely be disturbed. However, when an alternative forum has jurisdiction to hear the case, and when trial in the chosen forum would "establish . . . oppressiveness and vexation to a defendant . . . out of all proportion to plaintiff's convenience," or when the "chosen forum [is] inappropriate because of considerations affecting the court's own administrative and legal problems," the court may, in the exercise of its sound discretion, dismiss the case. Koster, supra, at 524, 67 S.Ct., at 831-832. To guide trial court discretion, the Court provided a list of "private interest factors" affecting the convenience of the litigants, and a list of "public interest factors" affecting the convenience of the forum. Gilbert, supra, 330 U.S. at 508-509, 67 S.Ct., at 843.6 9 After describing our decisions in Gilbert and Koster, the District Court analyzed the facts of these cases. It began by observing that an alternative forum existed in Scotland; Piper and Hartzell had agreed to submit to the jurisdiction of the Scottish courts and to waive any statute of limitations defense that might be available. It then stated that plaintiff's choice of forum was entitled to little weight. The court recognized that a plaintiff's choice ordinarily deserves substantial deference. It noted, however, that Reyno "is a representative of foreign citizens and residents seeking a forum in the United States because of the more liberal rules concerning products liability law," and that "the courts have been less solicitous when the plaintiff is not an American citizen or resident, and particularly when the foreign citizens seek to benefit from the more liberal tort rules provided for the protection of citizens and residents of the United States." 479 F.Supp., at 731. 10 The District Court next examined several factors relating to the private interests of the litigants, and determined that these factors strongly pointed towards Scotland as the appropriate forum. Although evidence concerning the design, manufacture, and testing of the plane and propeller is located in the United States, the connections with Scotland are otherwise "overwhelming." Id., at 732. The real parties in interest are citizens of Scotland, as were all the decedents. Witnesses who could testify regarding the maintenance of the aircraft, the training of the pilot, and the investigation of the accident—all essential to the defense—are in Great Britain. Moreover, all witnesses to damages are located in Scotland. Trial would be aided by familiarity with Scottish topography, and by easy access to the wreckage. 11 The District Court reasoned that because crucial witnesses and evidence were beyond the reach of compulsory process, and because the defendants would not be able to implead potential Scottish third-party defendants, it would be "unfair to make Piper and Hartzell proceed to trial in this forum." Id., at 733. The survivors had brought separate actions in Scotland against the pilot, McDonald, and Air Navigation. "[I]t would be fairer to all parties and less costly if the entire case was presented to one jury with available testimony from all relevant witnesses." Ibid. Although the court recognized that if trial were held in the United States, Piper and Hartzell could file indemnity or contribution actions against the Scottish defendants, it believed that there was a significant risk of inconsistent verdicts.7 12 The District Court concluded that the relevant public interests also pointed strongly towards dismissal. The court determined that Pennsylvania law would apply to Piper and Scottish law to Hartzell if the case were tried in the Middle District of Pennsylvania.8 As a result, "trial in this forum would be hopelessly complex and confusing for a jury." Id., at 734. In addition, the court noted that it was unfamiliar with Scottish law and thus would have to rely upon experts from that country. The court also found that the trial would be enormously costly and time-consuming; that it would be unfair to burden citizens with jury duty when the Middle District of Pennsylvania has little connection with the controversy; and that Scotland has a substantial interest in the outcome of the litigation. 13 In opposing the motions to dismiss, respondent contended that dismissal would be unfair because Scottish law was less favorable. The District Court explicitly rejected this claim. It reasoned that the possibility that dismissal might lead to an unfavorable change in the law did not deserve significant weight; any deficiency in the foreign law was a "matter to be dealt with in the foreign forum." Id., at 738. C 14 On appeal, the United States Court of Appeals for the Third Circuit reversed and remanded for trial. The decision to reverse appears to be based on two alternative grounds. First, the Court held that the District Court abused its discretion in conducting the Gilbert analysis. Second, the Court held that dismissal is never appropriate where the law of the alternative forum is less favorable to the plaintiff. 15 The Court of Appeals began its review of the District Court's Gilbert analysis by noting that the plaintiff's choice of forum deserved substantial weight, even though the real parties in interest are nonresidents. It then rejected the District Court's balancing of the private interests. It found that Piper and Hartzell had failed adequately to support their claim that key witnesses would be unavailable if trial were held in the United States: they had never specified the witnesses they would call and the testimony these witnesses would provide. The Court of Appeals gave little weight to the fact that Piper and Hartzell would not be able to implead potential Scottish third-party defendants, reasoning that this difficulty would be "burdensome" but not "unfair," 639 F.2d, at 162.9 Finally, the court stated that resolution of the suit would not be significantly aided by familiarity with Scottish topography, or by viewing the wreckage. 16 The Court of Appeals also rejected the District Court's analysis of the public interest factors. It found that the District Court gave undue emphasis to the application of Scottish law: " 'the mere fact that the court is called upon to determine and apply foreign law does not present a legal problem of the sort which would justify the dismissal of a case otherwise properly before the court.' " Id., at 163 (quoting Hoffman v. Goberman, 420 F.2d 427 (CA3 1970)). In any event, it believed that Scottish law need not be applied. After conducting its own choice-of-law analysis, the Court of Appeals determined that American law would govern the actions against both Piper and Hartzell.10 The same choice-of-law analysis apparently led it to conclude that Pennsylvania and Ohio, rather than Scotland, are the jurisdictions with the greatest policy interests in the dispute, and that all other public interest factors favored trial in the United States.11 17 In any event, it appears that the Court of Appeals would have reversed even if the District Court had properly balanced the public and private interests. The court stated: 18 "[I]t is apparent that the dismissal would work a change in the applicable law so that the plaintiff's strict liability claim would be eliminated from the case. But . . . a dismissal for forum non conveniens, like a statutory transfer, 'should not, despite its convenience, result in a change in the applicable law.' Only when American law is not applicable, or when the foreign jurisdiction would, as a matter of its own choice of law, give the plaintiff the benefit of the claim to which she is entitled here, would dismissal be justified." 630 F.2d, at 163-164 (footnote omitted) (quoting DeMateos v. Texaco, Inc., 562 F.2d 895, 899 (CA3 1977), cert. denied, 435 U.S. 904, 98 S.Ct. 1449, 55 L.Ed.2d 494 (1978)). 19 In other words, the court decided that dismissal is automatically barred if it would lead to a change in the applicable law unfavorable to the plaintiff. 20 We granted certiorari in these cases to consider the questions they raise concerning the proper application of the doctrine of forum non conveniens. 450 U.S. 909, 101 S.Ct. 1346, 67 L.Ed.2d 333 (1981).12 II 21 The Court of Appeals erred in holding that plaintiffs may defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the present forum. The possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry. 22 We expressly rejected the position adopted by the Court of Appeals in our decision in Canada Malting Co. v. Paterson Steamships, Ltd., 285 U.S. 413, 52 S.Ct. 413, 76 L.Ed. 837 (1932). That case arose out of a collision between two vessels in American waters. The Canadian owners of cargo lost in the accident sued the Canadian owners of one of the vessels in Federal District Court. The cargo owners chose an American court in large part because the relevant American liability rules were more favorable than the Canadian rules. The District Court dismissed on grounds of forum non conveniens. The plaintiffs argued that dismissal was inappropriate because Canadian laws were less favorable to them. This Court nonetheless affirmed: 23 "We have no occasion to enquire by what law the rights of the parties are governed, as we are of the opinion that, under any view of that question, it lay within the discretion of the District Court to decline to assume jurisdiction over the controversy. . . . '[T]he court will not take cognizance of the case if justice would be as well done by remitting the parties to their home forum.' " Id., at 419-420, 52 S.Ct., at 414, quoting Charter Shipping Co. v. Bowring, Jones & Tidy, 281 U.S. 515, 517, 50 S.Ct. 400, 414, 74 L.Ed. 1008 (1930). 24 The Court further stated that "[t]here was no basis for the contention that the District Court abused its discretion." 285 U.S., at 423, 52 S.Ct., at 415-16. 25 It is true that Canada Malting was decided before Gilbert, and that the doctrine of forum non conveniens was not fully crystallized until our decision in that case.13 However, Gilbert in no way affects the validity of Canada Malting. Indeed, by holding that the central focus of the forum non conveniens inquiry is convenience, Gilbert implicitly recognized that dismissal may not be barred solely because of the possibility of an unfavorable change in law.14 Under Gilbert, dismissal will ordinarily be appropriate where trial in the plaintiff's chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice.15 If substantial weight were given to the possibility of an unfavorable change in law, however, dismissal might be barred even where trial in the chosen forum was plainly inconvenient. 26 The Court of Appeals' decision is inconsistent with this Court's earlier forum non conveniens decisions in another respect. Those decisions have repeatedly emphasized the need to retain flexibility. In Gilbert, the Court refused to identify specific circumstances "which will justify or require either grant or denial of remedy." 330 U.S., at 508, 67 S.Ct., at 843. Similarly, in Koster, the Court rejected the contention that where a trial would involve inquiry into the internal affairs of a foreign corporation, dismissal was always appropriate. "That is one, but only one, factor which may show convenience." 330 U.S., at 527, 67 S.Ct., at 833. And in Williams v. Green Bay & Western R. Co., 326 U.S. 549, 557, 66 S.Ct. 284, 288, 90 L.Ed. 311 (1946), we stated that we would not lay down a rigid rule to govern discretion, and that "[e]ach case turns on its facts." If central emphasis were placed on any one factor, the forum non conveniens doctrine would lose much of the very flexibility that makes it so valuable. 27 In fact, if conclusive or substantial weight were given to the possibility of a change in law, the forum non conveniens doctrine would become virtually useless. Jurisdiction and venue requirements are often easily satisfied. As a result, many plaintiffs are able to choose from among several forums. Ordinarily, these plaintiffs will select that forum whose choice-of-law rules are most advantageous. Thus, if the possibility of an unfavorable change in substantive law is given substantial weight in the forum non conveniens inquiry, dismissal would rarely be proper. 28 Except for the court below, every Federal Court of Appeals that has considered this question after Gilbert has held that dismissal on grounds of forum non conveniens may be granted even though the law applicable in the alternative forum is less favorable to the plaintiff's chance of recovery. See, e. g., Pain v. United Technologies Corp., 205 U.S.App.D.C. 229, 248-249, 637 F.2d 775, 794-795 (1980); Fitzgerald v. Texaco, Inc., 521 F.2d 448, 453 (CA2 1975), cert. denied, 423 U.S. 1052, 96 S.Ct. 781, 46 L.Ed.2d 641 (1976); Anastasiadis v. S.S. Little John, 346 F.2d 281, 283 (CA5 1965), cert. denied, 384 U.S. 920, 86 S.Ct. 1368, 16 L.Ed.2d 440 (1966).16 Several courts have relied expressly on Canada Malting to hold that the possibility of an unfavorable change of law should not, by itself, bar dismissal. See Fitz- gerald v. Texaco, Inc., supra; Anglo-American Grain Co. v. The S/T Mina D'Amico, 169 F.Supp. 908 (ED Va.1959). 29 The Court of Appeals' approach is not only inconsistent with the purpose of the forum non conveniens doctrine, but also poses substantial practical problems. If the possibility of a change in law were given substantial weight, deciding motions to dismiss on the ground of forum non conveniens would become quite difficult. Choice-of-law analysis would become extremely important, and the courts would frequently be required to interpret the law of foreign jurisdictions. First, the trial court would have to determine what law would apply if the case were tried in the chosen forum, and what law would apply if the case were tried in the alternative forum. It would then have to compare the rights, remedies, and procedures available under the law that would be applied in each forum. Dismissal would be appropriate only if the court concluded that the law applied by the alternative forum is as favorable to the plaintiff as that of the chosen forum. The doctrine of forum non conveniens, however, is designed in part to help courts avoid conducting complex exercises in comparative law. As we stated in Gilbert, the public interest factors point towards dismissal where the court would be required to "untangle problems in conflict of laws, and in law foreign to itself." 330 U.S., at 509, 67 S.Ct., at 843. 30 Upholding the decision of the Court of Appeals would result in other practical problems. At least where the foreign plaintiff named an American manufacturer as defendant,17 a court could not dismiss the case on grounds of forum non conveniens where dismissal might lead to an unfavorable change in law. The American courts, which are already extremely attractive to foreign plaintiffs,18 would become even more attractive. The flow of litigation into the United States would increase and further congest already crowded courts.19 31 The Court of Appeals based its decision, at least in part, on an analogy between dismissals on grounds of forum non conveniens and transfers between federal courts pursuant to § 1404(a). In Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), this Court ruled that a § 1404(a) transfer should not result in a change in the applicable law. Relying on dictum in an earlier Third Circuit opinion interpreting Van Dusen, the court below held that that principle is also applicable to a dismissal on forum non conveniens grounds. 630 F.2d, at 164, and n. 51 (citing DeMateos v. Texaco, Inc., 562 F.2d, at 899). However, § 1404(a) transfers are different than dismissals on the ground of forum non conveniens. 32 Congress enacted § 1404(a) to permit change of venue between federal courts. Although the statute was drafted in accordance with the doctrine of forum non conveniens, see Revisor's Note, H.R.Rep. No. 308, 80th Cong., 1st Sess., A132 (1947); H.R.Rep. No. 2646, 79th Cong., 2d Sess., A127 (1946), it was intended to be a revision rather than a codification of the common law. Norwood v. Kirkpatrick, 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789 (1955). District courts were given more discretion to transfer under § 1404(a) than they had to dismiss on grounds of forum non conveniens. Id., at 31-32, 75 S.Ct., at 546. 33 The reasoning employed in Van Dusen v. Barrack is simply inapplicable to dismissals on grounds of forum non conveniens. That case did not discuss the common-law doctrine. Rather, it focused on "the construction and application" of § 1404(a). 376 U.S., at 613, 84 S.Ct., at 807-08.20 Emphasizing the remedial purpose of the statute, Barrack concluded that Congress could not have intended a transfer to be accompanied by a change in law. Id., at 622, 84 S.Ct., at 812. The statute was designed as a "federal housekeeping measure," allowing easy change of venue within a unified federal system. Id., at 613, 84 S.Ct., at 807-08. The Court feared that if a change in venue were accompanied by a change in law, forum-shopping parties would take unfair advantage of the relaxed standards for transfer. The rule was necessary to ensure the just and efficient operation of the statute.21 34 We do not hold that the possibility of an unfavorable change in law should never be a relevant consideration in a forum non conveniens inquiry. Of course, if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all, the unfavorable change in law may be given substantial weight; the district court may conclude that dismissal would not be in the interests of justice.22 In these cases, however, the remedies that would be provided by the Scottish courts do not fall within this category. Although the relatives of the decedents may not be able to rely on a strict liability theory, and although their potential damages award may be smaller, there is no danger that they will be deprived of any remedy or treated unfairly. III 35 The Court of Appeals also erred in rejecting the District Court's Gilbert analysis. The Court of Appeals stated that more weight should have been given to the plaintiff's choice of forum, and criticized the District Court's analysis of the private and public interests. However, the District Court's decision regarding the deference due plaintiff's choice of forum was appropriate. Furthermore, we do not believe that the District Court abused its discretion in weighing the private and public interests. A. 36 The District Court acknowledged that there is ordinarily a strong presumption in favor of the plaintiff's choice of forum, which may be overcome only when the private and public interest factors clearly point towards trial in the alternative forum. It held, however, that the presumption applies with less force when the plaintiff or real parties in interest are foreign. 37 The District Court's distinction between resident or citizen plaintiffs and foreign plaintiffs is fully justified. In Koster, the Court indicated that a plaintiff's choice of forum is entitled to greater deference when the plaintiff has chosen the home forum. 330 U.S., at 524, 67 S.Ct., at 831-832.23 When the home forum has been chosen, it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however, this assumption is much less reasonable. Because the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff's choice deserves less deference.24 B 38 The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference. Gilbert, 330 U.S., at 511-512, 67 S.Ct., at 844-845; Koster, 330 U.S., at 531, 67 S.Ct., at 835. Here, the Court of Appeals expressly acknowledged that the standard of review was one of abuse of discretion. In examining the District Court's analysis of the public and private interests, however, the Court of Appeals seems to have lost sight of this rule, and substituted its own judgment for that of the District Court. 39 (1) 40 In analyzing the private interest factors, the District Court stated that the connections with Scotland are "overwhelming." 479 F.Supp., at 732. This characterization may be somewhat exaggerated. Particularly with respect to the question of relative ease of access to sources of proof, the private interests point in both directions. As respondent emphasizes, records concerning the design, manufacture, and testing of the propeller and plane are located in the United States. She would have greater access to sources of proof relevant to her strict liability and negligence theories if trial were held here.25 However, the District Court did not act unreasonably in concluding that fewer evidentiary problems would be posed if the trial were held in Scotland. A large proportion of the relevant evidence is located in Great Britain. 41 The Court of Appeals found that the problems of proof could not be given any weight because Piper and Hartzell failed to describe with specificity the evidence they would not be able to obtain if trial were held in the United States. It suggested that defendants seeking forum non conveniens dismissal must submit affidavits identifying the witnesses they would call and the testimony these witnesses would provide if the trial were held in the alternative forum. Such detail is not necessary.26 Piper and Hartzell have moved for dismissal precisely because many crucial witnesses are located beyond the reach of compulsory process, and thus are difficult to identify or interview. Requiring extensive investigation would defeat the purpose of their motion. Of course, defendants must provide enough information to enable the District Court to balance the parties' interests. Our examination of the record convinces us that sufficient information was provided here. Both Piper and Hartzell submitted affidavits describing the evidentiary problems they would face if the trial were held in the United States.27 42 The District Court correctly concluded that the problems posed by the inability to implead potential third-party defendants clearly supported holding the trial in Scotland. Joinder of the pilot's estate, Air Navigation, and McDonald is crucial to the presentation of petitioners' defense. If Piper and Hartzell can show that the accident was caused not by a design defect, but rather by the negligence of the pilot, the plane's owners, or the charter company, they will be relieved of all liability. It is true, of course, that if Hartzell and Piper were found liable after a trial in the United States, they could institute an action for indemnity or contribution against these parties in Scotland. It would be far more convenient, however, to resolve all claims in one trial. The Court of Appeals rejected this argument. Forcing petitioners to rely on actions for indemnity or contributions would be "burdensome" but not "unfair." 630 F.2d, at 162. Finding that trial in the plaintiff's chosen forum would be burdensome, however, is sufficient to support dismissal on grounds of forum non conveniens.28 43 (2) 44 The District Court's review of the factors relating to the public interest was also reasonable. On the basis of its choice-of-law analysis, it concluded that if the case were tried in the Middle District of Pennsylvania, Pennsylvania law would apply to Piper and Scottish law to Hartzell. It stated that a trial involving two sets of laws would be confusing to the jury. It also noted its own lack of familiarity with Scottish law. Consideration of these problems was clearly appropriate under Gilbert ; in that case we explicitly held that the need to apply foreign law pointed towards dismissal.29 The Court of Appeals found that the District Court's choice-of-law analysis was incorrect, and that American law would apply to both Hartzell and Piper. Thus, lack of familiarity with foreign law would not be a problem. Even if the Court of Appeals' conclusion is correct, however, all other public interest factors favored trial in Scotland. 45 Scotland has a very strong interest in this litigation. The accident occurred in its airspace. All of the decedents were Scottish. Apart from Piper and Hartzell, all potential plaintiffs and defendants are either Scottish or English. As we stated in Gilbert, there is "a local interest in having localized controversies decided at home." 330 U.S., at 509, 67 S.Ct., at 843. Respondent argues that American citizens have an interest in ensuring that American manufacturers are deterred from producing defective products, and that additional deterrence might be obtained if Piper and Hartzell were tried in the United States, where they could be sued on the basis of both negligence and strict liability. However, the incremental deterrence that would be gained if this trial were held in an American court is likely to be insignificant. The American interest in this accident is simply not sufficient to justify the enormous commitment of judicial time and resources that would inevitably be required if the case were to be tried here. IV 46 The Court of Appeals erred in holding that the possibility of an unfavorable change in law bars dismissal on the ground of forum non conveniens. It also erred in rejecting the District Court's Gilbert analysis. The District Court properly decided that the presumption in favor of the respondent's forum choice applied with less than maximum force because the real parties in interest are foreign. It did not act unreasonably in deciding that the private interests pointed towards trial in Scotland. Nor did it act unreasonably in deciding that the public interests favored trial in Scotland. Thus, the judgment of the Court of Appeals is 47 Reversed. 48 Justice POWELL took no part in the decision of these cases. 49 Justice O'CONNOR took no part in the consideration or decision of these cases. 50 Justice WHITE, concurring in part and dissenting in part. 51 I join Parts I and II of the Court's opinion. However, like Justice BRENNAN and Justice STEVENS, I would not proceed to deal with the issues addressed in Part III. To that extent, I am in dissent. 52 Justice STEVENS, with whom Justice BRENNAN joins, dissenting. 53 In No. 80-848, only one question is presented for review to this Court: 54 "Whether, in an action in federal district court brought by foreign plaintiffs against American defendants, the plaintiffs may defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied if the case were litigated in the district court is more favorable to them than the law that would be applied by the courts of their own nation." Pet. for Cert. in No. 80-848, p. i. 55 In No. 80-883, the Court limited its grant of certiorari, see 450 U.S. 909, 101 S.Ct. 1346, 67 L.Ed.2d 33, to the same question: 56 "Must a motion to dismiss on grounds of forum non conveniens be denied whenever the law of the alternate forum is less favorable to recovery than that which would be applied by the district court?" Pet. for Cert. in No. 80-883, p. i. 57 I agree that this question should be answered in the negative. Having decided that question, I would simply remand the case to the Court of Appeals for further consideration of the question whether the District Court correctly decided that Pennsylvania was not a convenient forum in which to litigate a claim against a Pennsylvania company that a plane was defectively designed and manufactured in Pennsylvania. 1 Avco-Lycoming, Inc., the manufacturer of the plane's engines, was also named as a defendant. It was subsequently dismissed from the suit by stipulation. 2 The pilot's estate has also filed suit in the United Kingdom against Air Navigation, McDonald, Piper, and Hartzell. 3 See Affidavit of Donald Ian Kerr MacLeod, App. A19 (affidavit submitted to District Court by petitioners describing Scottish law). Suits for damages are governed by The Damages (Scotland) Act 1976. 4 Section 1404(a) provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 5 The District Court concluded that it could not assert personal jurisdiction over Hartzell consistent with due process. However, it decided not to dismiss Hartzell because the corporation would be amenable to process in Pennsylvania. 6 The factors pertaining to the private interests of the litigants included the "relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive." Gilbert, 330 U.S., at 508, 67 S.Ct., at 843. The public factors bearing on the question included the administrative difficulties flowing from court congestion; the "local interest in having localized controversies decided at home"; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty. Id., at 509, 67 S.Ct., at 843. 7 The District Court explained that inconsistent verdicts might result if petitioners were held liable on the basis of strict liability here, and then required to prove negligence in an indemnity action in Scotland. Moreover, even if the same standard of liability applied, there was a danger that different juries would find different facts and produce inconsistent results. 8 Under Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), a court ordinarily must apply the choice-of-law rules of the State in which it sits. However, where a case is transferred pursuant to 28 U.S.C. § 1404(a), it must apply the choice-of-law rules of the State from which the case was transferred. Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1946). Relying on these two cases, the District Court concluded that California choice-of-law rules would apply to Piper, and Pennsylvania choice-of-law rules would apply to Hartzell. It further concluded that California applied a "governmental interests" analysis in resolving choice-of-law problems, and that Pennsylvania employed a "significant contacts" analysis. The court used the "governmental interests" analysis to determine that Pennsylvania liability rules would apply to Piper, and the "significant contacts" analysis to determine that Scottish liability rules would apply to Hartzell. 9 The court claimed that the risk of inconsistent verdicts was slight because Pennsylvania and Scotland both adhere to principles of res judicata. 10 The Court of Appeals agreed with the District Court that California choice-of-law rules applied to Piper, and that Pennsylvania choice-of-law rules applied to Hartzell, see n. 8, supra. It did not agree, however, that California used a "governmental interests" analysis and that Pennsylvania used a "significant contacts" analysis. Rather, it believed that both jurisdictions employed the "false conflicts" test. Applying this test, it concluded that Ohio and Pennsylvania had a greater policy interest in the dispute than Scotland, and that American law would apply to both Piper and Hartzell. 11 The court's reasoning on this point is somewhat unclear. It states: "We have held that under the applicable choice of law rules Pennsylvania and Ohio are the jurisdictions with the greatest policy interest in this dispute. It follows that the other public interest factors that should be considered under the Supreme Court cases of Gilbert and Koster favor trial in this country rather than Scotland." 630 F.2d, at 171. The Court of Appeals concluded as part of its choice-of-law analysis that the United States had the greatest policy interest in the dispute. See n. 10, supra. It apparently believed that this conclusion necessarily implied that the forum non conveniens public interest factors pointed toward trial in the United States. 12 We granted certiorari in No. 80-848 to consider the question "[w]hether, in an action in federal district court brought by foreign plaintiffs against American defendants, the plaintiffs may defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied if the case were litigated in the district court is more favorable to them than the law that would be applied by the courts of their own nation." We granted certiorari in No. 80-883 to consider the question whether "a motion to dismiss on grounds of forum non conveniens [should] be denied whenever the law of the alternate forum is less favorable to recovery than that which would be applied by the district court." In this opinion, we begin by considering whether the Court of Appeals properly held that the possibility of an unfavorable change in law automatically bars dismissal. Part II, infra. Since we conclude that the Court of Appeals erred, we then consider its review of the District Court's Gilbert analysis to determine whether dismissal was otherwise appropriate. Part III, infra. We believe that it is necessary to discuss the Gilbert analysis in order to properly dispose of the cases. The questions on which certiorari was granted are sufficiently broad to justify our discussion of the District Court's Gilbert analysis. However, even if the issues we discuss in Part III are not within the bounds of the questions with respect to which certiorari was granted, our consideration of these issues is not inappropriate. An order limiting the grant of certiorari does not operate as a jurisdictional bar. We may consider questions outside the scope of the limited order when resolution of those questions is necessary for the proper disposition of the case. See Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928); McCandless v. Furlaud, 293 U.S. 67, 55 S.Ct. 42, 79 L.Ed. 202 (1934); Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967). 13 The doctrine of forum non conveniens has a long history. It originated in Scotland, see Braucher, The Inconvenient Federal Forum, 60 Harv.L.Rev. 908, 909-911 (1947), and became part of the common law of many States, see id., at 911-912; Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Colum.L.Rev. 1 (1929). The doctrine was also frequently applied in federal admiralty actions. See, e. g., Canada Malting Co. v. Paterson Steamships, Ltd.; see also Bickel, The Doctrine of Forum Non Conveniens As Applied in the Federal Courts in Matters of Admiralty, 35 Cornell L.Q. 12 (1949). In Williams v. Green Bay & Western R. Co., 326 U.S. 549, 66 S.Ct. 284, 90 L.Ed. 311 (1946), the Court first indicated that motions to dismiss on grounds of forum non conveniens could be made in federal diversity actions. The doctrine became firmly established when Gilbert and Koster were decided one year later. In previous forum non conveniens decisions, the Court has left unresolved the question whether under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), state or federal law of forum non conveniens applies in a diversity case. Gilbert, 330 U.S., at 509, 67 S.Ct., at 843; Koster, 330 U.S., at 529, 67 S.Ct., at 834; Williams v. Green Bay & Western R. Co., supra, 326 U.S., at 551, 558-559, 66 S.Ct., at 288-289. The Court did not decide this issue because the same result would have been reached in each case under federal or state law. The lower courts in these cases reached the same conclusion: Pennsylvania and California law on forum non conveniens dismissals are virtually identical to federal law. See 630 F.2d, at 158. Thus, here also, we need not resolve the Erie question. 14 See also Williams v. Green Bay & Western R. Co., supra, 326 U.S., at 555, n. 4, 66 S.Ct., at 287, n. 4 (citing with approval a Scottish case that dismissed an action on the ground of forum non conveniens despite the possibility of an unfavorable change in law). 15 In other words, Gilbert held that dismissal may be warranted where a plaintiff chooses a particular forum, not because it is convenient, but solely in order to harass the defendant or take advantage of favorable law. This is precisely the situation in which the Court of Appeals' rule would bar dismissal. 16 Cf. Dahl v. United Technologies Corp., 632 F.2d 1027, 1032 (CA3 1980) (dismissal affirmed where "Norwegian substantive law will predominate the trial of this case and the mere presence of a count pleaded under Connecticut law but which may have little chance of success does not warrant a different conclusion"). But see DeMateos v. Texaco, Inc., 562 F.2d 895, 899 (CA3 1977) (dictum) (principle that § 1404(a) transfer should not result in change in law is no less applicable to dismissal on grounds of forum non conveniens ), cert. denied, 435 U.S. 904, 98 S.Ct. 1449, 55 L.Ed.2d 494 (1978). The court below relied on the dictum in DeMateos in reaching its decision. See infra, at 253-254. 17 In fact, the defendant might not even have to be American. A foreign plaintiff seeking damages for an accident that occurred abroad might be able to obtain service of process on a foreign defendant who does business in the United States. Under the Court of Appeals' holding, dismissal would be barred if the law in the alternative forum were less favorable to the plaintiff even though none of the parties are American, and even though there is absolutely no nexus between the subject matter of the litigation and the United States. 18 First, all but 6 of the 50 American States—Delaware, Massachusetts, Michigan, North Carolina, Virginia, and Wyoming offer strict liability. 1 CCH Prod. Liability Rep. § 4016 (1981). Rules roughly equivalent to American strict liability are effective in France, Belgium, and Luxembourg. West Germany and Japan have a strict liability statute for pharmaceuticals. However, strict liability remains primarily an American innovation. Second, the tort plaintiff may choose, at least potentially, from among 50 jurisdictions if he decides to file suit in the United States. Each of these jurisdictions applies its own set of malleable choice-of-law rules. Third, jury trials are almost always available in the United States, while they are never provided in civil law jurisdictions. G. Gloss, Comparative Law 12 (1979); J. Merryman, The Civil Law Tradition 121 (1969). Even in the United Kingdom, most civil actions are not tried before a jury. 1 G. Keeton, The United Kingdom: The Development of its Laws and Constitutions 309 (1955). Fourth, unlike most foreign jurisdictions, American courts allow contingent attorney's fees, and do not tax losing parties with their opponents' attorney's fees. R. Schlesinger, Comparative Law: Cases, Text, Materials 275-277 (3d ed. 1970); Orban, Product Liability: A Comparative Legal Restatement—Foreign National Law and the EEC Directive, 8 Ga.J.Int'l & Comp.L. 342, 393 (1978). Fifth, discovery is more extensive in American than in foreign courts. R. Schlesinger, supra, at 307, 310, and n. 33. 19 In holding that the possibility of a change in law unfavorable to the plaintiff should not be given substantial weight, we also necessarily hold that the possibility of a change in law favorable to defendant should not be considered. Respondent suggests that Piper and Hartzell filed the motion to dismiss, not simply because trial in the United States would be inconvenient, but also because they believe the laws of Scotland are more favorable. She argues that this should be taken into account in the analysis of the private interests. We recognize, of course, that Piper and Hartzell may be engaged in reverse forum-shopping. However, this possibility ordinarily should not enter into a trial court's analysis of the private interests. If the defendant is able to overcome the presumption in favor of plaintiff by showing that trial in the chosen forum would be unnecessarily burdensome, dismissal is appropriate—regardless of the fact that defendant may also be motivated by a desire to obtain a more favorable forum. Cf. Kloeckner Reederei und Kohlenhandel v. A/S Hakedal, 210 F.2d 754, 757 (CA2) (defendant not entitled to dismissal on grounds of forum non conveniens solely because the law of the original forum is less favorable to him than the law of the alternative forum), cert. dism'd by stipulation, 348 U.S. 801, 75 S.Ct. 17, 99 L.Ed. 633 (1954). 20 Barrack at least implicitly recognized that the rule it announced for transfer under § 1404(a) was not the common-law rule. It cited several decisions under § 1404(a) in which lower courts had been "strongly inclined to protect plaintiffs against the risk that transfer might be accompanied by a prejudicial change in applicable state laws." 376 U.S., at 630, n. 26, 84 S.Ct., at 816, n. 26. These decisions frequently rested on the assumption that a change in law would have been unavoidable under common law forum non conveniens, but could be avoided under § 1404(a). See, e. g., Greve v. Gibraltar Enterprises, Inc., 85 F.Supp. 410, 414 (NM 1949). 21 The United States Court of Appeals for the Second Circuit has expressly rejected the contention that rules governing transfers pursuant to § 1404(a) also govern forum non conveniens dismissals. Schertenleib v. Traum, 589 F.2d 1156 (1978). 22 At the outset of any forum non conveniens inquiry, the court must determine whether there exists an alternative forum. Ordinarily, this requirement will be satisfied when the defendant is "amenable to process" in the other jurisdiction. Gilbert, 330 U.S., at 506-507, 67 S.Ct., at 842. In rare circumstances, however, where the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate alternative, and the initial requirement may not be satisfied. Thus, for example, dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute. Cf. Phoenix Canada Oil Co. Ltd. v. Texaco, Inc., 78 F.R.D. 445 (Del.1978) (court refuses to dismiss, where alternative forum is Ecuador, it is unclear whether Ecuadorean tribunal will hear the case, and there is no generally codified Ecuadorean legal remedy for the unjust enrichment and tort claims asserted). 23 In Koster, we stated that "[i]n any balancing of conveniences, a real showing of convenience by a plaintiff who has sued in his home forum will normally outweigh the inconvenience the defendant may have shown." 330 U.S., at 524, 67 S.Ct., at 831-832. See also Swift & Co. Packers v. Compania Colombiana del Caribe, 339 U.S. 684, 697, 70 S.Ct. 861, 869, 94 L.Ed. 1206 (1950) ("suit by a United States citizen against a foreign respondent brings into force considerations very different from those in suits between foreigners"); Canada Malting Co. v. Paterson Steamships, Ltd., 285 U.S., at 421, 52 S.Ct., at 415 ("[t]he rule recognizing an unqualified discretion to decline jurisdiction in suits in admiralty between foreigners appears to be supported by an unbroken line of decisions in the lower federal courts"). As the District Court correctly noted in its opinion, 479 F.Supp., at 731; see also n. 10, supra, the lower federal courts have routinely given less weight to a foreign plaintiff's choice of forum. See, e. g., Founding Church of Scientology v. Verlag, 175 U.S.App.D.C. 402, 408, 536 F.2d 429, 435 (1976); Paper Operations Consultants Int'l, Ltd. v. §§ Hong Kong Amber, 513 F.2d 667, 672 (CA9 1975); Fitzgerald v. Texaco, Inc., 521 F.2d 448, 451 (CA2 1975), cert. denied, 423 U.S. 1052, 96 S.Ct. 781, 46 L.Ed.2d 641 (1976); Mobil Tankers Co. v. Mene Grande Oil Co., 363 F.2d 611, 614 (CA3), cert. denied, 385 U.S. 945, 87 S.Ct. 318, 17 L.Ed.2d 225 (1966); Ionescu v. E. F. Hutton & Co. (France), 465 F.Supp. 139 (SDNY 1979); Michell v. General Motors Corp., 439 F.Supp. 24, 27 (ND Ohio 1977). A citizen's forum choice should not be given dispositive weight, however. See Pain v. United Technologies Corp., 205 U.S.App.D.C. 229, 252-253, 637 F.2d 775, 796-797 (1980); Mizokami Bros. of Arizona, Inc. v. Baychem Corp., 556 F.2d 975 (CA9 1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 770, 54 L.Ed.2d 783 (1978). Citizens or residents deserve somewhat more deference than foreign plaintiffs, but dismissal should not be automatically barred when a plaintiff has filed suit in his home forum. As always, if the balance of conveniences suggests that trial in the chosen forum would be unnecessarily burdensome for the defendant or the court, dismissal is proper. 24 See Pain v. United Technologies Corp., supra, 205 U.S.App.D.C. at 253, 637 F.2d, at 797 (citizenship and residence are proxies for convenience); see also Note, Forum Non Conveniens and American Plaintiffs in the Federal Courts, 47 U.Chi.L.Rev. 373, 382-383 (1980). Respondent argues that since plaintiffs will ordinarily file suit in the jurisdiction that offers the most favorable law, establishing a strong presumption in favor of both home and foreign plaintiffs will ensure that defendants will always be held to the highest possible standard of accountability for their purported wrongdoing. However, the deference accorded a plaintiff's choice of forum has never been intended to guarantee that the plaintiff will be able to select the law that will govern the case. See supra, at 247-250. 25 In the future, where similar problems are presented, district courts might dismiss subject to the condition that defendant corporations agree to provide the records relevant to the plaintiff's claims. 26 The United States Court of Appeals for the Second Circuit has expressly rejected such a requirement. Fitzgerald v. Texaco, Inc., supra, at 451, n. 3. In other cases, dismissals have been affirmed despite the failure to provide detailed affidavits. See Farmanfarmaian v. Gulf Oil Corp., 437 F.Supp. 910, 924 (SDNY 1977), aff'd., 588 F.2d 880 (CA2 1978). And in a decision handed down two weeks after the decision in this case, another Third Circuit panel affirmed a dismissal without mentioning such a requirement. See Dahl v. United Technologies Corp., 632 F.2d 1027 (1980). The Court of Appeals apparently relied on an analogy to motions to transfer under 28 U.S.C. § 1404(a). 630 F.2d, at 160-161. It cited Marbury-Pattillo Construction Co. v. Bayside Warehouse Co., 490 F.2d 155, 158 (CA5 1974), and Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 148 (CA10 1967), which suggest an affidavit requirement in the § 1404(a) context. As we have explained, however, dismissals on grounds of forum non conveniens and § 1404(a) transfers are not directly comparable. See supra, at 253-254. 27 See Affidavit of Ronald C. Scott, App. to Pet. for Cert. of Hartzell Propeller, Inc., A75; Affidavit of Charles J. McKelvey, App. to Pet. for Cert. of Piper Aircraft Co. 1f. The affidavit provided to the District Court by Piper states that it would call the following witnesses: the relatives of the decedents; the owners and employees of McDonald; the persons responsible for the training and licensing of the pilot; the persons responsible for servicing and maintaining the aircraft; and two or three of its own employees involved in the design and manufacture of the aircraft. 28 See Pain v. United Technologies Corp., 205 U.S.App.D.C., at 244, 637 F.2d, at 790 (relying on similar argument in approving dismissal of action arising out of helicopter crash that took place in Norway). 29 Many forum non conveniens decisions have held that the need to apply foreign law favors dismissal. See, e. g., Calavo Growers of California v. Belgium, 632 F.2d 963, 967 (CA2 1980), cert. denied, 449 U.S. 1084, 101 S.Ct. 871, 66 L.Ed.2d 809 (1981); Schertenleib v. Traum, 589 F.2d, at 1165. Of course, this factor alone is not sufficient to warrant dismissal when a balancing of all relevant factors shows that the plaintiff's chosen forum is appropriate. See, e. g., Founding Church of Scientology v. Verlag, 175 U.S.App.D.C., at 409, 536 F.2d, at 436; Burt v. Isthmus Development Co., 218 F.2d 353, 357 (CA5), cert. denied, 349 U.S. 922, 75 S.Ct. 661, 99 L.Ed. 1254 (1955).

89

454 U.S. 312 102 S.Ct. 445 70 L.Ed.2d 509 POLK COUNTY et al., Petitionersv.Russell Richard DODSON. No. 80-824. Argued Oct. 13, 1981. Decided Dec. 14, 1981. Syllabus Respondent brought suit in Federal District Court under 42 U.S.C. § 1983 against petitioners Polk County, its Offender Advocate, its Board of Supervisors, and Martha Shepard, an attorney in the Offender Advocate's Office. As the factual basis for his lawsuit, respondent alleged that Shepard, who had been assigned to represent him in an appeal of a criminal conviction to the Iowa Supreme Court, failed to represent him adequately since she had moved for permission to withdraw as counsel on the ground that respondent's claims were legally frivolous. The Iowa Supreme Court granted Shepard's motion and dismissed respondent's appeal. In the District Court, respondent alleged that Shepard's actions violated certain of his constitutional rights. To establish that Shepard acted "under color of state law," a jurisdictional requisite for a § 1983 action, respondent relied on her employment by the county. The District Court dismissed the claims against all of the petitioners, but the Court of Appeals reversed. Held: 1. A public defender does not act "under color of state law" when performing a lawyer's traditional functions as counsel to an indigent defendant in a state criminal proceeding. Because it was based on such activities, the complaint against Shepard must be dismissed. Pp. 317-325. (a) From the moment of Shepard's assignment to represent respondent, their relationship became identical to that existing between any other lawyer and client, except for the source of Shepard's payment. The legal system posits that a defense lawyer best serves the public, not by acting on the State's behalf or in concert with it, but rather by advancing the undivided interests of the client. This is essentially a private function for which state office and authority are not needed. Pp. 317-319. (b) Cases in which this Court assumed that state-employed doctors serving in supervisory capacities at state institutions could be held liable under § 1983 are not controlling. O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396, and Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251, distinguished. Pp. 319-320. (c) Although the employment relationship between the State and a public defender is a relevant factor, it is insufficient to establish that a public defender acts under color of state law within the meaning of § 1983. A public defender is not amenable to administrative direction in the same sense as other state employees. And equally important, it is the State's constitutional obligation to respect the professional independence of the public defenders whom it engages. Pp. 320-322. (d) It is the ethical obligation of any lawyer—whether privately retained or publicly appointed—not to clog the courts with frivolous motions or appeals. Respondent has no legitimate complaint that Shepard failed to prosecute a frivolous appeal on his behalf. Pp. 322-324. 2. Respondent has not alleged unconstitutional action by Polk County, its Offender Advocate, or its Board of Supervisors. To the extent that his claims rest on a respondeat superior theory of liability, they fail to present a claim under § 1983. And a constitutional tort actionable under § 1983 is not described by the bald allegations that Shepard had injured respondent while acting pursuant to administrative rules and procedures and that the county "retains and maintains, advocates out of law school" who have on numerous occasions moved to withdraw from appeals of convictions. Respondent failed to allege any administrative policy that arguably caused a violation of his rights under the Sixth, Eighth, or Fourteenth Amendments. An official policy of withdrawal from frivolous cases would not violate the Constitution. Pp. 325-327. 628 F.2d 1104, reversed. Norman G. Jesse, Des Moines, Iowa, for petitioners. John D. Hudson, Des Moines, Iowa, for respondent. Edwin S. Kneedler, Washington, D. C., for the United States as amicus curiae, by special leave of Court. Justice POWELL delivered the opinion of the Court. 1 The question in this case is whether a public defender acts "under color of state law" when representing an indigent defendant in a state criminal proceeding. 2 * This case arose when the respondent Russell Richard Dodson filed a pro se complaint in the United States District Court for the Southern District of Iowa. Dodson brought the action in federal court under 42 U.S.C. § 1983. As the factual basis for his lawsuit Dodson alleged that Martha Shepard, an attorney in the Polk County Offender Advocate's Office, had failed to represent him adequately in an appeal to the Iowa Supreme Court.1 3 A full-time employee of the county, Shepard had been assigned to represent Dodson in the appeal of a conviction for robbery. After inquiring into the case, however, she moved for permission to withdraw as counsel on the ground that Dodson's claims were wholly frivolous.2 Shepard accompanied her motion with an affidavit explaining this conclusion. She also filed a memorandum summarizing Dodson's claims and the supporting legal arguments. On November 9, 1979, the Iowa Supreme Court granted the motion to withdraw and dismissed Dodson's appeal. 4 In his complaint in the District Court the respondent alleged that Shepard's actions, especially her motion to withdraw, had deprived him of his right to counsel, subjected him to cruel and unusual punishment, and denied him due process of law.3 He sought injunctive relief as well as damages in the amount of $175,000. To establish that Shepard acted "under color of state law," a jurisdictional requisite for a § 1983 action, Dodson relied on her employment by the county. Dodson also sued Polk County, the Polk County Offender Advocate, and the Polk County Board of Supervisors. He alleged that the Offender Advocate and the Board of Supervisors had established the rules and procedures that Shepard was bound to follow in handling criminal appeals. 5 The District Court dismissed Dodson's claims against all defendants. 483 F.Supp. 347 (1979). It held that the relevant actions by Shepard had not occurred under color of state law. Canvassing the leading authorities, it reasoned that a public defender owes a duty of undivided loyalty to his client. A public defender therefore could not be sued as an agent of the State. The District Court dismissed the Offender Advocate from the suit on the same theory. It also held that Dodson's complaint failed to allege the requisite personal involvement to state a § 1983 claim against Polk County and the Board of Supervisors. 6 The Court of Appeals for the Eighth Circuit reversed. 628 F.2d 1104 (1980). Like the District Court, it assumed that a public defender owed his client the same responsibility as any other attorney. In its view, however, the "dispositive point" was that Iowa Offender Advocates were "employees of the County," which was "merely a creature of the State." Whether public defenders received instructions from county officials was "beside the point." "Public defenders receive their power not because they are selected by their clients, but because they are employed by the County to represent a certain class of clients, who likely have little or no choice in selecting the lawyer who will defend them." Id., at 1106. In holding as it did on this issue, the court recognized that its decision conflicted with the holdings of a number of other Courts of Appeals. Reasoning that Dodson's pro se complaint should be liberally construed, the court also ordered reinstatement of the § 1983 claims against the Offender Advocate and the Board of Supervisors. The question of their involvement was left for factual development in the District Court. In addition, the court ordered that Dodson be given an opportunity on remand to state his claim against the county with greater specificity. Finally, the court rejected the argument that a public defender should enjoy the same immunity provided to judges and prosecutors. It held that the defendants were entitled to a defense of "good faith," but not of "absolute," immunity. 7 One member of the panel filed a dissent. The dissent argued that a person acts under color of state law only when exercising powers created by the authority of the State. In this case, it reasoned, the alleged wrongs were not made possible only because the defendant was a public defender. In essence the complaint asserted an ordinary malpractice claim, which would be equally maintainable against a retained attorney or appointed counsel. The dissent also argued that public defenders should be entitled to absolute immunity from suit. 8 We granted certiorari to resolve the division among the Courts of Appeals over whether a public defender acts under color of state law when providing representation to an indigent client.4 450 U.S. 963, 101 S.Ct. 1478, 67 L.Ed.2d 612 (1981). We now reverse. II 9 In United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941), this Court held that a person acts under color of state law only when exercising power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law."5 In this case the Offender Advocate for Polk County assigned Martha Shepard to represent Russell Dodson in the appeal of his criminal conviction. This assignment entailed functions and obligations in no way dependent on state authority. From the moment of her appointment, Shepard became Dodson's lawyer, and Dodson became Shepard's client. Except for the source of payment, their relationship became identical to that existing between any other lawyer and client. "Once a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program." ABA Standards for Criminal Justice 4-3.9 (2d ed. 1980).6 10 Within the context of our legal system, the duties of a defense lawyer are those of a personal counselor and advocate. It is often said that lawyers are "officers of the court." But the Courts of Appeals are agreed that a lawyer representing a client is not, by virtue of being an officer of the court, a state actor "under color of state law" within the meaning of § 1983.7 In our system a defense lawyer characteristically opposes the designated representatives of the State. The system assumes that adversarial testing will ultimately advance the public interest in truth and fairness. But it posits that a defense lawyer best serves the public, not by acting on behalf of the State or in concert with it, but rather by advancing "the undivided interests of his client."8 This is essentially a private function, traditionally filled by retained counsel, for which state office and authority are not needed.9 III 11 The respondent argues that a public defender's employment relationship with the State, rather than his function, should determine whether he acts under color of state law. We take a different view. A. 12 In arguing that the employment relationship establishes that the public defender acts under color of state law, Dodson relies heavily on two cases in which this Court assumed that physicians, whose relationships with their patients have not traditionally depended on state authority, could be held liable under § 1983. See O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). These cases, he argues, are analytically identical to this one. Like the physicians in O'Connor and Estelle, a public defender is paid by the State. Further, like the institutionalized patients in those cases, an indigent convict is unable to choose the professional who will render him traditionally private services. These factors, it is argued, establish that public defenders—like physicians in state hospitals—act under color of state law and are amenable to suit under § 1983. 13 In our view O'Connor and Estelle are distinguishable from this case. O'Connor involved claims against a psychiatrist who served as the superintendent at a state mental hospital. Although a physician with traditionally private obligations to his patients, he was sued in his capacity as a state custodian and administrator. Unlike a lawyer, the administrator of a state hospital owes no duty of "undivided loyalty" to his patients. On the contrary, it is his function to protect the interest of the public as well as that of his wards. Similarly, Estelle involved a physician who was the medical director of the Texas Department of Corrections and also the chief medical officer of a prison hospital. He saw his patients in a custodial as well as a medical capacity. 14 Because of their custodial and supervisory functions, the state-employed doctors in O'Connor and Estelle faced their employer in a very different posture than does a public defender. Institutional physicians assume an obligation to the mission that the State, through the institution, attempts to achieve. With the public defender it is different. As argued in the dissenting opinion in the Court of Appeals, it is the function of the public defender to enter "not guilty" pleas, move to suppress State's evidence, object to evidence at trial, cross-examine State's witnesses, and make closing arguments in behalf of defendants.10 All of these are adversarial functions. We find it peculiarly difficult to detect any color of state law in such activities. B 15 Despite the public defender's obligation to represent his clients against the State, Dodson argues—and the Court of Appeals concluded—that the status of the public defender differs materially from that of other defense lawyers. Because public defenders are paid by the State, it is argued that they are subject to supervision by persons with interests unrelated to those of indigent clients. Although the employment relationship is certainly a relevant factor, we find it insufficient to establish that a public defender acts under color of state law within the meaning of § 1983. 16 First, a public defender is not amenable to administrative direction in the same sense as other employees of the State. Administrative and legislative decisions undoubtedly influence the way a public defender does his work. State decisions may determine the quality of his law library or the size of his caseload. But a defense lawyer is not, and by the nature of his function cannot be, the servant of an administrative superior. Held to the same standards of competence and integrity as a private lawyer, see Moore v. United States, 432 F.2d 730 (CA3 1970), a public defender works under canons of professional responsibility that mandate his exercise of independent judgment on behalf of the client. "A lawyer shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services." DR 5-107(B), ABA Code of Professional Responsibility (1976).11 17 Second, and equally important, it is the constitutional obligation of the State to respect the professional independence of the public defenders whom it engages.12 This Court's decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), established the right of state criminal defendants to the " 'guiding hand of counsel at every step in the proceedings against [them].' " Id., at 345, 83 S.Ct., at 797, quoting Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). Implicit in the concept of a "guiding hand" is the assumption that counsel will be free of state control. There can be no fair trial unless the accused receives the services of an effective and independent advocate. See, e. g., Gideon v. Wainwright, supra; Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). At least in the absence of pleading and proof to the contrary, we therefore cannot assume that Polk County, having employed public defenders to satisfy the State's obligations under Gideon v. Wainwright, has attempted to control their action in a manner inconsistent with the principles on which Gideon rests.13 C 18 The respondent urges a different view of the public defender's relationships to his clients and to the State. Whatever their ethical obligations, public defenders do not, he argues, characteristically extend their clients the same undivided loyalty tendered by privately retained attorneys. In support of this argument Dodson notes that the public defender moved to be dismissed from his case against the client's wishes. Dodson claims to have suffered prejudice from this act. He insists that such action would not have been taken by a privately retained attorney. 19 Dodson's argument assumes that a private lawyer would have borne no professional obligation to refuse to prosecute a frivolous appeal. This is error. In claiming that a public defender is peculiarly subject to divided loyalties, Dodson confuses a lawyer's ethical obligations to the judicial system with an allegiance to the adversary interests of the State in a criminal prosecution. Although a defense attorney has a duty to advance all colorable claims and defenses, the canons of professional ethics impose limits on permissible advocacy. It is the obligation of any lawyer—whether privately retained or publicly appointed—not to clog the courts with frivolous motions or appeals.14 Dodson has no legitimate complaint that his lawyer refused to do so. 20 As a matter of empirical fact, it may or may not be true that the professional obligation to withdraw from frivolous appeals will be invoked with disproportionate frequency in cases involving indigent prisoners. The recent burgeoning of postconviction remedies has undoubtedly subjected the legal system to unprecedented strains, including increased demands for legal assistance.15 The State of Iowa has responded by authorizing the provision of greater representation than the Constitution requires. Its system of public defenders contemplates the extension of legal assistance through the various tiers of postconviction review, incorporating only the general ethical limitation that counsel should withdraw from frivolous cases.16 21 In this context Dodson argues that public defenders making withdrawal decisions are viewed by indigent prisoners as hostile state actors. We think there is little justification for this view, if indeed it is widely held.17 IV 22 In concluding that Shepard did not act under color of state law in exercising her independent professional judgment in a criminal proceeding, we do not suggest that a public defender never acts in that role. In Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), for example, we found that a public defender so acted when making hiring and firing decisions on behalf of the State. It may be—although the question is not present in this case—that a public defender also would act under color of state law while performing certain administrative and possibly investigative functions. Cf. Imbler v. Pachtman, 424 U.S. 409, 430-431, and n. 33, 96 S.Ct. 984, 995-996, and n. 33, 47 L.Ed.2d 128 (1976). And of course we intimate no views as to a public defender's liability for malpractice in an appropriate case under state tort law. See Ferri v. Ackerman, 444 U.S. 193, 198, 100 S.Ct. 402, 406, 62 L.Ed.2d 355 (1979).18 With respect to Dodson's § 1983 claims against Shepard, we decide only that a public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding.19 Because it was based on such activities, the complaint against Shepard must be dismissed. V 23 In his complaint in the District Court, Dodson also asserted § 1983 claims against the Offender Advocate, Polk County, and the Polk County Board of Supervisors. Section 1983 will not support a claim based on a respondeat superior theory of liability. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). To the extent that Dodson's claims rest on this basis, they fail to present a federal claim. 24 The Court of Appeals apparently read Dodson's pro se complaint as susceptible of another construction. It found an actionable claim in the bald allegation that Shepard had injured him while acting pursuant to administrative "rules and procedures for . . . handling criminal appeals" and that her employers were therefore responsible for her actions. 628 F.2d, at 1108. We also have noted an allegation in respondent's complaint that the county "retains and maintains, advocates out of law school" who have on numerous occasions moved to withdraw from appeals of criminal convictions. 25 The question is whether either allegation describes a constitutional tort actionable under § 1983. We conclude not. In Monell v. New York City Dept. of Social Services, supra, we held that official policy must be "the moving force of the constitutional violation" in order to establish the liability of a government body under § 1983. Id., at 694, 98 S.Ct., at 2037. See Rizzo v. Goode, 423 U.S. 362, 370-377, 96 S.Ct. 598, 603-607, 46 L.Ed.2d 561 (1976) (general allegation of administrative negligence fails to state a constitutional claim cognizable under § 1983). In this case the respondent failed to allege any policy that arguably violated his rights under the Sixth, Eighth, or Fourteenth Amendments. He did assert that assistant public defenders refused to prosecute certain appeals on grounds of their frivolity. But a policy of withdrawal from frivolous cases would not violate the Constitution. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). And respondent argued the existence of no impermissible policy pursuant to which the withdrawals might have occurred. Respondent further asserted that he personally was deprived of a Sixth Amendment right to effective counsel. Again, however, he failed to allege that this deprivation was caused by any constitutionally forbidden rule or procedure. 26 When Dodson's complaint is viewed against the standards of our cases, even in light of the sympathetic pleading requirements applicable to pro se petitioners, see Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam ), we do not believe he has alleged unconstitutional action by the Offender Advocate, Polk County, or the Polk County Board of Supervisors. Accordingly, his claims against them must be dismissed. VI 27 For the reasons stated in this opinion, the decision of the Court of Appeals is 28 Reversed. Chief Justice BURGER concurring: 29 I join the Court's opinion, but it is important to emphasize that in providing counsel for an accused the governmental participation is very limited. Under Gideon v. Wainwright, 372 U.S. 335, 82 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the government undertakes only to provide a professionally qualified advocate wholly independent of the government. It is the independence from governmental control as to how the assigned task is to be performed that is crucial. The advocate, as an officer of the court which issued the commission to practice, owes an obligation to the court to repudiate any external effort to direct how the obligations to the client are to be carried out. The obligations owed by the attorney to the client are defined by the professional codes, not by the governmental entity from which the defense advocate's compensation is derived. Disciplinary Rule 5-107(B) of the ABA Code of Professional Responsibility* succinctly states the rule: "(B) A lawyer shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services." 30 Moreover, it is elementary that every advocate has an obligation to eschew proceedings considered to be professionally improper or irresponsible. Once counsel in this case reached a considered judgment on the merits of the claim sought to be put forward, her actions were consistent with the highest traditions of the Bar. 31 Justice BLACKMUN, dissenting. 32 One perhaps should be particularly circumspect when he finds himself in solitary dissent. See Alexander (Commissioner) v. "Americans United" Inc., 416 U.S. 752, 763, 94 S.Ct. 2053, 2059, 40 L.Ed.2d 518 (1974) (dissenting opinion). On careful reflection, however, I am convinced that my position is a valid one, and I therefore set forth my views in opposition to those of the Court. When a full-time state employee, working in an office fully funded and extensively regulated by the State and acting to fulfill a state obligation, violates a person's constitutional rights, the Court consistently has held that the employee acts "under color of" state law, within the meaning and reach of 42 U.S.C. § 1983. Because I conclude that the Court's decision in this case is contrary to its prior rulings on the meaning of "under color of" state law, and because the Court charts new territory by adopting a functional test in determining liability under the statute, I respectfully dissent. * The Court holds for the first time today that a government official's "employment relationship" is no more than a "relevant factor" in determining whether he acts under color of state law within the meaning of § 1983Ante, at 321. Only last Term, in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the Court noted that defendant-prison officials unquestionably satisfied the under-color-of-state-law requirement because they "were, after all, state employees in positions of considerable authority." Id., at 535-536, 101 S.Ct., at 1913. Thus began, and ended, the Court's discussion of the color-of-law question in that case. As in Taylor, the county employee sued in this action presumptively acts under color of state law. See also Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157, n. 5, 98 S.Ct. 1729, 1734, n. 5, 56 L.Ed.2d 185 (1978). The definition of "under color of" state law relied upon by the Court here and articulated in United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941), requires that the defendants in a § 1983 action have committed the challenged acts "in the course of their performance of duties" and have misused power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law . . . ." Id., at 325-326, 61 S.Ct., at 1042-1043. See also Screws v. United States, 325 U.S. 91, 110, 65 S.Ct. 1031, 1039, 89 L.Ed. 1495 (1945) (plurality opinion). Respondent's allegations place this case squarely within both components of that definition. Respondent challenges action taken by petitioner Shepard, a full-time county employee, while acting in her official capacity and while exercising her responsibilities pursuant to Iowa law. See generally Iowa Code §§ 336A.3, subd. 2, 336A.6 (1981). The Court implicitly concedes that the Offender Advocate's assignment of Shepard to handle respondent's appeal was action under color of law. But the Court then fails to recognize that it was by virtue of that assignment that Shepard had the authority to represent respondent and to seek permission to withdraw as his counsel, thereby allegedly violating his constitutional rights. The authority of a privately retained attorney to represent his clients is derived from the client's selection of the lawyer. A public defender's power, however, is possessed by virtue of the State's selection of the attorney and his official employment. The Court insists that public defenders, unlike other state employees, are free from state control because they are not subject to administrative direction—both because ethical standards require that their professional judgment not be sacrificed to the interests of their employers and because the State is obligated to provide indigent defendants with independent advocates.1 This distinction ignores both precedent and reality. The Court long has held that a state official acts under color of law when the State does not authorize, or even know of, his conduct. See, e. g., Adickes v. S. H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). That the State did not instruct Shepard to withdraw from respondent's case is therefore irrelevant to the question whether she acted under color of state law in so doing. Moreover, the present case is indistinguishable from Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). There the Court held that a prison doctor's deliberate indifference to a prisoner's medical needs is prohibited by the Eighth Amendment and may be the subject of a § 1983 claim. The prisoner's § 1983 complaint in Gamble stated claims against Dr. Gray in his capacity both as medical director for the Texas Department of Corrections and as treating physician. Gray was sued because he allegedly had given the plaintiff substandard medical care—the doctor's duty to the public and his custodial and supervisory functions were not at issue.2 If the Court had determined that Gray acted under color of state law only in his capacity as a custodian and administrator, it would have dismissed the claims against him for want of subject-matter jurisdiction, rather than on the merits. The Court today holds that a public defender cannot act under color of state law because of his independent ethical obligations to his client. Yet Gamble cannot be distinguished on this ground. An individual physician has a professional and ethical obligation to his patient just as an attorney has to his client. Like a public defender, an institutional doctor's responsibilities to a patient may conflict with institutional policies and practices. Moreover, Dr. Gray was fulfilling the State's duty to supply medical care to prison inmates; similarly, the public defender is dedicated to satisfying the State's obligation to provide representation to indigent defendants. Finally, like respondent, who had no say in the selection of Shepard as his attorney, inmate Gamble had no role in the choice of Gray as his doctor. The Gamble Court did not find that color of state law evaporated in the face of a professional's independent ethical obligations. I cannot see why this case is different. As is demonstrated by the pervasive involvement of the county in the operations of the Offender Advocate's Office, the Court, in my view, unduly minimizes the influence that the government actually has over the public defender. The public defender is not merely paid by the county; he is totally dependent financially on the County Board of Supervisors, which fixes the compensation for the public defender and his staff and provides the office with equipment and supplies. See Iowa Code §§ 336A.5, 336A.9 (1981). The Board likewise is statutorily empowered to determine "indigency" and to prescribe the number of assistant attorneys and other staff members considered necessary for the public defender. See §§ 336A.4, 336A.5. The county's control over the size of and funding for the public defender's office, as well as over the number of potential clients, effectively dictates the size of an individual attorney's caseload and influences substantially the amount of time the attorney is able to devote to each case. The public defender's discretion in handling individual cases—and therefore his ability to provide effective assistance to his clients—is circumscribed to an extent not experienced by privately retained attorneys. See, e. g., Robinson v. Bergstrom, 579 F.2d 401, 402-403 (CA7 1978) (public defender delayed five and one-half years in filing appellate brief because of "an error in his judgment regarding his caseload," which was 600 to 900 cases per year). Similarly, authority over the appointment of the public defender and his staff, see Iowa Code §§ 336A.3, 336A.5 (1981), gives the State substantial influence over the quality of the representation indigents receive. In addition, the public defender is directed to file an annual report with the judges of the district court of any county he serves, the State's Attorney General, and each county's Board of Supervisors, setting forth in detail all cases handled by the defender's office during the preceding year. § 336A.8. This requirement suggests that the government has some supervisory control over the public defender's office, or at least that the public defender will be wary of antagonizing the officials to whom he must report, and to whom he owes his appointment and the very existence of the office. See §§ 336A.3, 336A.1. And surely the public defender's staff must conform to whatever policies and regulations the office or the State imposes, including those aimed at ensuring the effectiveness of representation. In this case, for example, while the county may not have directed petitioner Shepard to withdraw from respondent's case,3 it certainly could have established general guidelines describing the factors a public defender should consider in determining which appeals are frivolous and the proper treatment of such appeals.4 On the basis of the Court's opinion in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and the county's pervasive involvement with the Offender Advocate's Office in this case, I necessarily conclude that the presumption that a state employee acts under color of state law when exercising his official duties is not overridden by the public defender's ethical obligations to his client.5 II Although holding that petitioner Shepard may not be held liable under § 1983 for withdrawing from respondent's appeal, the Court limits its ruling to cases where the public defender performs "a lawyer's traditional functions as counsel to a defendant in a criminal proceeding." Ante, at 325. The Court appears to concede that a public defender may act under color of state law when performing unspecified administrative and investigative functions, or even when acting as an advocate—if his conduct is "nontraditional," or if the plaintiff pleads and proves that the State influenced the attorney's representation. See ante, at 325, and n. 19, 322. These attempts to draw distinctions based on function are unconvincing. The Court never before has held that a government employee acts under color of state law while performing some of his official duties but not while performing others. The Court drew no such distinctions in Estelle v. Gamble, supra, although it could have adopted the Court's approach today and held that an institutional physician acts under color of state law when acting in his custodial and administrative roles, but not when treating a patient. I can only conclude that the Court creates this artificial distinction in order to avoid a conflict with Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), where the Court did not pause to question whether the defendant-public defender acted under color of state law. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), cited by the Court, ante, at 325, does not support such line-drawing. Based on policy considerations that are inapplicable here, see n. 8, infra, the Court held in Imbler that the prosecutor enjoys absolute immunity for actions taken in his role as an advocate. The Court refused to decide, however, whether the same policies require immunity for prosecutors acting in their administrative or investigative roles. Not only did the Imbler Court therefore fail to endorse the functional test adopted here, but it pointed to the difficulties it foresaw in implementing such a test. See 424 U.S., at 431, n. 33, 96 S.Ct., at 995, n. 33. Moreover, the question of immunity—what type of affirmative defense is to be afforded a state official sued under § 1983—is completely different from the issue whether an employee acts under color of state law—a determination that goes to a federal court's subject-matter jurisdiction over a complaint. If a defendant does not act under color of state law, a federal court has no power to entertain a § 1983 complaint against him. The immunity doctrine, which is based on common-law traditions and policy considerations, is a defense that must be pleaded and is not relevant to a court's power to consider the case. Even officials protected by absolute immunity act under color of state law, and Imbler did not indicate to the contrary; in fact, absolute immunity protects a prosecutor from § 1983 liability only as long as his actions are within the scope of the immunity. See Imbler, 424 U.S., at 419, n. 13, 96 S.Ct., at 989, n. 13. The Court nowhere suggested in Imbler that the functional test could properly be used in any other context. The Court also disclaims any intent to disturb cases in which public defenders have been prosecuted under the criminal counterpart of § 1983, 18 U.S.C. § 242, for extorting payment from clients' friends or relatives, ante, at 325, n. 19, citing United States v. Senak, 477 F.2d 304 (CA7), cert. denied, 414 U.S. 856, 94 S.Ct. 157, 38 L.Ed.2d 105 (1973), apparently because the Court does not consider such conduct a "traditional" function of an attorney.6 Yet the Court of Appeals' holding in Senak that the attorney acted under color of law is inconsistent with the Court's line-drawing here.7 As the final loophole, the Court apparently leaves open the possibility that an indigent defendant could plead and prove that the State so influenced the public defender assigned to his case as to make the public defender liable under § 1983. See ante, at 322. What type of state intervention is sufficient, and how a plaintiff is supposed to allege such facts before discovery, are not specified. In essence, the Court appears to be holding a public defender exempt from § 1983 liability only when the alleged injury is ineffective assistance of counsel. Not only is it disturbing to see the Court adopt a hierarchy of constitutional rights for purposes of § 1983 actions, but such an approach will be extremely difficult to implement. I envision the Court's functional analysis as having one of two results—both, in my view, unfortunate. If the federal courts in effect adopt a per se rule and dismiss all § 1983 complaints against public defenders, the most egregious behavior by a public defender, even if unquestionably the result of pressures by the State, will not be cognizable under § 1983. Alternatively, the courts may attempt diligently to implement the Court's ruling and dismiss only those § 1983 claims based on the public defender's "traditional" functions as an advocate. The outcome then, I fear, will be lengthy and involved hearings on the merits to determine whether the court has subject-matter jurisdiction—the very result the Court wishes to avoid. III I am sympathetic with the Court's desire to protect public defenders, who represent indigent defendants in good faith, from a § 1983 suit by every dissatisfied client. But the Court's concern for public defender programs—and its seeming hostility to the merits of respondent's claims, seeante, at 323-324, and n. 17—do not justify the approach taken by the Court today. To recognize that public defenders act under color of state law would not transform every legal malpractice into a constitutional violation. Cf. Estelle v. Gamble, 429 U.S., at 105-106, 97 S.Ct., at 291-292. Presumably, some immunity would be provided public defenders sued under § 1983.8 The Court always has seen fit before to rely on immunity and the procedures available for dismissing meritless complaints in order to protect state officials. See, e. g., Butz v. Economou, 438 U.S. 478, 507-508, 98 S.Ct. 2894, 2911-2912, 57 L.Ed.2d 895 (1978); cf. Ferri v. Ackerman, 444 U.S. 193, 200, n. 17, 100 S.Ct. 402, 407, n. 17, 62 L.Ed.2d 355 (1979). I would do the same here. I would affirm the judgment of the Court of Appeals 1 According to findings made in the District Court: "The Offender Advocate is the independent creation of the Polk County Board of Supervisors. It or one of its lawyers is appointed by the court to represent indigent defendants. It has a salaried lawyer director and several full time salaried lawyers. It is fully funded by Polk County." 483 F.Supp. 347, 349, n. 2 (1979). The office handles about 2,500 cases per year. 2 She did so pursuant to Rule 104 of the Iowa Rules of Appellate Procedure, which provides in pertinent part: "(a) If counsel appointed to represent a convicted indigent defendant in an appeal to the supreme court is convinced after conscientious investigation of the trial transcript that the appeal is frivolous and that he cannot, in good conscience, proceed with the appeal, he may move the supreme court in writing to withdraw. The motion must be accompanied by a brief referring to anything in the record that might arguably support the appeal." Rule 104 also provides that prior to filing any motion to withdraw, the lawyer must advise his client in writing of his intention to do so. The client then has 30 days in which to notify the Supreme Court if he still wishes to proceed with the appeal. If the client does not communicate with the Supreme Court, the motion will be granted and the appeal dismissed. If the client does express a desire to proceed, the Supreme Court will review the legal points raised. If the court finds them not to be frivolous, "it may grant counsel's motion to withdraw but will prior to submission of the appeal afford the indigent the assistance of new counsel, to be appointed by the trial court." Iowa Rule App.Proc. 104(f ). The Iowa procedure is very similar to that prescribed by this Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). 3 Dodson also asserted pendent claims for malpractice and breach of an oral promise to prosecute the appeal. 4 The Courts of Appeals for the Seventh and Eighth Circuits have held that public defenders do act under color of state law in their representation of indigent defendants. See Robinson v. Bergstrom, 579 F.2d 401, 405-408 (CA7 1978) (public defender acts under color of state law but is absolutely immune from suit under § 1983); 628 F.2d 1104 (1980) (case below). The Fifth and the Tenth Circuits have held that they do not. See Slavin v. Curry, 574 F.2d 1256, 1265 (CA5), modified on other grounds, 583 F.2d 779 (1978); Espinoza v. Rogers, 470 F.2d 1174, 1175 (CA10 1972). The Third and Ninth Circuits have supported the latter position in dicta, in cases in which they have held that public defenders are entitled to absolute immunity from suit under § 1983. See Brown v. Joseph, 463 F.2d 1046, 1048 (CA3 1972), cert. denied, 412 U.S. 950, 93 S.Ct. 3015, 37 L.Ed.2d 1003 (1973); Miller v. Barilla, 549 F.2d 648, 650 (CA9 1977). The petition for certiorari in this case also presented an immunity question. The petitioners asked us to decide whether public defenders are entitled to the same absolute immunity as judges, see Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872), and prosecutors, see Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). As we hold that a public defender does not act under color of state law when performing the traditional functions of counsel to a criminal defendant, we need not reach the immunity issue. 5 The Court has reiterated this definition in subsequent cases. See, e. g., Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). 6 See Burger, Counsel for the Prosecution and Defense—Their Roles Under the Minimum Standards, 8 Am.Crim.L.Q. 2, 6 (1969). This view of the public defender's obligations to his client has been accepted by virtually every court that has considered the issue. See, e. g., Espinoza v. Rogers, supra, at 1175; Brown v. Joseph, supra, at 1048. 7 See, e. g., Skolnick v. Martin, 317 F.2d 855 (CA7 1963); Dotlich v. Kane, 497 F.2d 390 (CA8 1974). This is true even of cases in which a private attorney has been assigned to represent an indigent defendant. See, e. g., Page v. Sharpe, 487 F.2d 567, 570 (CA1 1973); Hall v. Quillen, 631 F.2d 1154, 1156 (CA4 1980); Mulligan v. Schlachter, 389 F.2d 231, 233 (CA6 1968); French v. Corrigan, 432 F.2d 1211, 1214 (CA7 1970), cert. denied, 401 U.S. 915, 91 S.Ct. 890, 27 L.Ed.2d 814 (1971); Barnes v. Dorsey, 480 F.2d 1057, 1061 (CA8 1973). 8 Ferri v. Ackerman, 444 U.S. 193, 204, 100 S.Ct. 402, 409, 62 L.Ed.2d 355 (1979): "[T]he primary office performed by appointed counsel parallels the office of privately retained counsel. Although it is true that appointed counsel serves pursuant to statutory authorization and in furtherance of the federal interest in insuring effective representation of criminal defendants, his duty is not to the public at large, except in that general way. His principal responsibility is to serve the undivided interests of his client. Indeed, an indispensable element of the effective performance of his responsibilities is the ability to act independently of the Government and to oppose it in adversary litigation." 9 Although lawyers are generally licensed by the States, "they are not officials of government by virtue of being lawyers." In re Griffiths, 413 U.S. 717, 729, 93 S.Ct. 2851, 2858, 37 L.Ed.2d 910 (1973). 10 See 628 F.2d, at 1110. 11 This rule has been adopted verbatim as DR 5-107(B), Iowa Code of Professional Responsibility for Lawyers, printed in Iowa Rules of Court 526 (1981). The rule is "mandatory in character," and a lawyer who violated it would be "subject to disciplinary action" by the Iowa courts. Id., at 477. See Sanchez v. Murphy, 385 F.Supp. 1362, 1365 (Nev.1974) ("The personal attorney-client relationship established between a deputy [public defender] and a defendant is not one that the public defender can control. The canons of professional ethics require that the deputy be 'his own man' irrespective of advice or pressures from others. A deputy public defender cannot in any realistic sense, in fulfillment of his professional responsibilities, be a servant of the public defender. He is, himself, an independent officer"). 12 Relying on such cases as Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), and Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), the respondent claims that the State's funding of criminal defenses makes it a "joint participant" in that enterprise, locked in a "symbiotic relationship" with individual public defenders. He urges us to hold on this theory that public defenders act under color of state law within the meaning of § 1983. We cannot do so. In both Burton and Moose Lodge the question was whether "state action" was present. In this case the question is whether a public defender—who is concededly an employee of the county—acted "under color of state law" in her representation of Russell Dodson. Although this Court has sometimes treated the questions as if they were identical, see United States v. Price, 383 U.S. 787, 794, and n. 7, 86 S.Ct. 1152, 1157, and n. 7, 16 L.Ed.2d 267 (1966), we need not consider their relationship in order to decide this case. Our factual inquiry into the professional obligations and functions of a public defender persuades us that Shepard was not a "joint participant" with the State and that, when representing respondent, she was not acting under color of state law. 13 The dissenting opinion, post, at 328, describes the public defender as "a full-time state employee, working in an office fully funded and extensively regulated by the State and acting to fulfill a state obligation." The dissent reasons from this description that, for purposes of determining the "under color of state law" question, the function performed by the public defender is immaterial. There is no difference in this respect, the dissent contends, between administrative functions, see Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), and a lawyer's traditional functions as counsel to a defendant in a criminal proceeding. This view ignores the basic distinction that in the latter capacity a public defender is not acting on behalf of the State; he is the State's adversary. 14 See ABA Standards for Criminal Justice, Commentary to 4-3.9 (2d ed. 1980) ("No lawyer, whether assigned by the court, part of a legal aid or defender staff, or privately retained or paid, has any duty to take any steps or present dilatory or frivolous motions or any actions that are unfounded according to the lawyer's informed professional judgment. On the contrary, to do so is unprofessional conduct"); ABA Standing Committee on Ethics and Professional Responsibility, Informal Opinion 955, Obligation to Take Criminal Appeal, reprinted in 2 Informal Ethics Opinions 955-956 (1975) (like court-appointed lawyer, private counsel "ethically, should not clog the courts with frivolous motions or appeals"). See also Nickols v. Gagnon, 454 F.2d 467, 472 (CA7 1971). 15 See ABA Standards for Criminal Justice, Commentary to 4-3.9 (2d ed. 1980) (noting that lawyers assigned to indigent prisoners are often put under pressure to "engage in dilatory or frivolous tactics"). 16 See Iowa Code, Ch. 336A (1981). A public defender appointed pursuant to the state statute is directed to "prosecute any appeals or other remedies before or after conviction that he considers to be in the interest of justice." § 336A.6. 17 The view is unfortunate. Our adversary system functions best when a lawyer enjoys the wholehearted confidence of his client. But confidence will not be improved by creating a disincentive for the States to provide postconviction assistance to indigent prisoners. To impose § 1983 liability for a lawyer's performance of traditional functions as counsel to a criminal defendant would have precisely that effect. 18 In addition to possible relief under state tort law, an indigent prisoner retains the right to initiate state and federal habeas corpus proceedings. For an innocent prisoner wrongly incarcerated as the result of ineffective or malicious counsel, this normally is the most important form of judicial relief. 19 We do not disturb the theory of cases, brought under 18 U.S.C. § 242, in which public defenders have been prosecuted for extorting payment from clients' friends or relatives "under color of . . . law. . . ." See, e. g., United States v. Senak, 477 F.2d 304 (CA7), cert. denied, 414 U.S. 856, 94 S.Ct. 157, 38 L.Ed.2d 105 (1973). * See, e. g., ABA Code Of Professional Responsibility, Canon 5 (1976): "A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client." Ethical Consideration 5-1 explains this Canon: "The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client." See also ABA Standards for Criminal Justice, The Prosecution Function, Ch. 3, The Defense Function, Ch. 4 (2d ed. 1980). 1 The Court also says that a public defender's ethical duties and obligations are the same as those of a privately retained lawyer and concludes that the public defender serves "essentially a private function . . . for which state office and authority are not needed." Ante, at 319. The fact that a state official's role is parallel to one in the private sector, however, has never before deterred the Court from holding that the former is action under color of state law. Section 1983 is meant to proscribe certain actions by state officials even though identical conduct by private persons is not included within the statute's scope. Cf. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); see also Griffin v. Maryland, 378 U.S. 130, 135, 84 S.Ct. 1770, 1772-1773, 12 L.Ed.2d 754 (1964) ("If an individual is possessed of state authority and purports to act under that authority, his action is state action. It is irrelevant that he might have taken the same action had he acted in a purely private capacity . . ."). Although Griffin involved "state action" under the Fourteenth Amendment, "state action" and "under color of state law" have consistently been treated as incorporating identical requirements. See n. 5, infra. 2 Similarly, in O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975), the defendant, a psychiatrist and superintendent of a state mental hospital, was not sued for actions taken pursuant to his responsibilities to protect the public; the evidence clearly showed that the plaintiff was hospitalized for reasons other than dangerousness to himself and others. See id., at 567-568, 574, n. 9, 95 S.Ct., at 2489-2490, 2493, n. 9. 3 Reasoning that § 1983 claims may not be based on the doctrine of respondeat superior, the Court concludes that respondent has not stated a claim against the Offender Advocate, Polk County, or the County Board of Supervisors. See ante, at 325-327. I agree with the Court of Appeals, however, that respondent did allege that these defendants had "established and layed [sic ] out the ground rules" for the public defender's office and had "authorize[d] [petitioner Shepard] to act in the manner prescribed in [the] complaint. . . ." App. 5. Respondent also alleged that other public defenders in the Offender Advocate's Office had acted in the same manner as had Shepard, and he challenged the "process" by which the office represented indigents. Id., at 13. Although respondent did not point to any particular official policy pursuant to which Shepard had acted in withdrawing from his case, his general allegations of the existence of such a policy, "however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972). If respondent is unable to substantiate his claims, the complaint, of course, may be dismissed on a motion for summary judgment. 4 This pervasive state control over public defenders distinguishes them from court-appointed attorneys, who are not state officials, who have control over their own caseloads and representations, who depend on the State only for a fee, and with whom the State has no real day-to-day involvement. 5 Although I find the Court's precedents on the definition of "under color of" state law persuasive here, I also draw support from the Court's discussions of state action under the Fourteenth Amendment. I find no basis for the Court's intimation, ante, at 322, n. 12, that the two doctrines incorporate different requirements. See United States v. Price, 383 U.S. 787, 794, n. 7, 86 S.Ct. 1152, 1157, n. 7, 16 L.Ed.2d 267 (1966). To the extent that the Court has analyzed the two concepts separately, it has done so in § 1983 suits against private actors. In Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157, n. 5, 98 S.Ct. 1729, 1734, n. 5, 56 L.Ed.2d 185 (1978), the Court observed: "Of course, where the defendant is a public official, the two elements of a § 1983 action merge. 'The involvement of a state official . . . plainly provides the state action essential to show a direct violation of petitioner's Fourteenth Amendment . . . rights, whether or not the actions of the [officer] were officially authorized, or lawful.' Adickes v. S. H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970) (citations omitted)." (Ellipses in original.) The principles articulated in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), for discerning state action in the conduct of a private party are therefore helpful by way of analogy. First, the public defender's office "constitute[s] a physically and financially integral and, indeed, indispensable part of the State's plan," id., at 723-724, 81 S.Ct., at 860-861, to fulfill its constitutional obligation to provide representation to indigents. Second, the relationship between the State and the public defender is a symbiotic one: the State is able to satisfy its responsibility to supply counsel to defendants, and the public defender is gainfully employed. Finally, the State is responsible for the public defender's office and can attempt to ensure that clients receive effective assistance of counsel, for example, by hiring qualified personnel, providing sufficient funding, and enforcing strict standards of competence. In cases of ineffective assistance by public defenders, then, it may be said that the State "has not only made itself a party to the [representation], but has elected to place its power, property and prestige behind [the public defender's action]. The State has so far insinuated itself into a position of interdependence with [the attorney] that it must be recognized as a joint participant in the challenged activity. . . ." Id., at 725, 81 S.Ct., at 862. 6 Again, the Court's hand is forced somewhat by precedent even those officials afforded absolute immunity from civil damages under § 1983 are susceptible to prosecution under § 242 for the willful violation of civil rights. See Imbler v. Pachtman, 424 U.S. 409, 429, 96 S.Ct. 984, 994, 47 L.Ed.2d 128 (1976). The Court has consistently held that the two provisions incorporate the same under-color-of-state-law requirement. See, e. g., Adickes v. S. H. Kress & Co., 398 U.S. 144, 152, n. 7, 90 S.Ct. 1598, 1606, n. 7, 26 L.Ed.2d 142 (1970); United States v. Price, 383 U.S., at 794, n. 7, 86 S.Ct., at 1157, n. 7. 7 In Senak the Court of Appeals held that a public defender's demand for compensation from a client was made "ostensibly by virtue of [the attorney's] appointment 'backed by the power of the state,' " and that his official position "gave him the opportunity to make the demands and clothed him with the authority of the state in so doing." 477 F.2d, at 308. Similarly, in this case, petitioner Shepard's authority to withdraw from respondent's case was derived from her "appointment 'backed by the power of the state' "; her official position "gave her the opportunity" to act so as allegedly to violate respondent's constitutional rights. 8 I do not discuss this issue in detail because the Court does not reach it, but I assume that public defenders should be afforded qualified immunity. Absolute immunity has been extended only to those in positions that have a common-law history of immunity. See, e. g., Pierson v. Ray, 386 U.S. 547, 554-555, 87 S.Ct. 1213, 1217-1218, 18 L.Ed.2d 288 (1967). Moreover, public defenders' jobs do not subject them to conflicting responsibilities to a number of constituencies so that absolute immunity is necessary to ensure principled decisionmaking; in fact, the threat of § 1983 claims by dissatisfied clients may provide additional incentive for competent performance of a public defender's duties. See Ferri v. Ackerman, 444 U.S. 193, 203-204, 100 S.Ct. 402, 408-409, 62 L.Ed.2d 355 (1979).

12

454 U.S. 290 102 S.Ct. 434 70 L.Ed.2d 492 CITIZENS AGAINST RENT CONTROL/COALITION FOR FAIR HOUSING, et al., Appellantsv.CITY OF BERKELEY, CALIFORNIA, et al. No. 80-737. Argued Oct. 14, 1981. Decided Dec. 14, 1981. Syllabus A Berkeley, Cal., ordinance places a limitation of $250 on contributions to committees formed to support or oppose ballot measures submitted to a popular vote. When appellant association, which was formed to oppose a ballot measure imposing rent control in the city, accepted some contributions exceeding the $250 limit, appellee Berkeley Fair Campaign Practices Commission ordered the association to pay the excess into the city treasury. The association then brought suit in California Superior Court seeking injunctive relief against enforcement of the ordinance, and that court subsequently granted summary judgment for the association, holding that the ordinance was invalid on its face as a violation of the First Amendment. The California Court of Appeal affirmed, but the California Supreme Court reversed, holding that the ordinance furthered compelling governmental interests in ensuring that special interest groups could not "corrupt" the initiative process by spending large amounts to support or oppose a ballot measure, which interests outweighed the First Amendment interests infringed upon. Held : The restraint imposed by the ordinance on the right of association and in turn on individual and collective rights of expression plainly contravenes both the right of association and the speech guarantees of the First Amendment. Pp. 294-300. (a) To place a limit on individuals wishing to band together to advance their views on a ballot measure, while placing no limit on individuals acting alone, is clearly a restraint on the right of association. Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659, held that contributions to candidates or their committees could be restricted in order to prevent corruption or its appearance. Here, there is no risk of corruption because this case relates to contributions to committees favoring or opposing ballot measures. Also, there is no risk that the voters will be in doubt as to the identity of those whose money supports or opposes a given ballot measure, since the contributors must make their identities known under the disclosure provisions of the ordinance. Under the exacting judicial review appropriate for infringements of First Amendment rights, the $250 limit is unconstitutional. Pp. 295-299. (b) The contribution limit automatically affects expenditures, and limits on expenditures operate as a direct restraint on freedom of expression of groups and individuals wishing to express themselves through groups. There is no significant state or public interest in curtailing debate and discussion of a ballot measure, and the integrity of the political system will be adequately protected if contributors are identified in a public filing revealing the amounts contributed. Pp. 299-300. 27 Cal.3d 819, 167 Cal.Rptr. 84, 614 P.2d 742, reversed and remanded. James R. Parrinello, San Francisco, Cal., for appellants. Natalie E. West, City Atty., Berkeley, Cal., for appellees. Chief Justice BURGER delivered the opinion of the Court. 1 The issue on appeal is whether a limitation of $250 on contributions to committees formed to support or oppose ballot measures violates the First Amendment. 2 * The voters of Berkeley, Cal., adopted the Election Reform Act of 1974, Ord. No. 4700-N.S., by initiative. The campaign ordinance so enacted placed limits on expenditures and contributions in campaigns involving both candidates and ballot measures.1 Section 602 of the ordinance provides: 3 "No person shall make, and no campaign treasurer shall solicit or accept, any contribution which will cause the total amount contributed by such person with respect to a single election in support of or in opposition to a measure to exceed two hundred and fifty dollars ($250)."2 4 Appellant Citizens Against Rent Control is an unincorporated association formed to oppose a ballot measure at issue in the April 19, 1977, election. The ballot measure would have imposed rent control on many of Berkeley's rental units. To make its views on the ballot measure known, Citizens Against Rent Control raised more than $108,000 from approximately 1,300 contributors. It accepted nine contributions over the $250 limit. Those nine contributions totaled $20,850, or $18,600 more than if none of the contributions exceeded $250. Pursuant to § 604 of the ordinance,3 appellee Berkeley Fair Campaign Practices Commission, 20 days before the election, ordered appellant Citizens Against Rent Control to pay $18,600 into the city treasury. 5 Two weeks before the election, Citizens Against Rent Control sought and obtained a temporary restraining order prohibiting enforcement of §§ 602 and 604. The ballot measure relating to rent control was defeated. The Superior Court subsequently granted Citizens Against Rent Control's motion for summary judgment, declaring that § 602 was invalid on its face because it violated the First Amendment of the United States Constitution and Art. I, § 2, of the California Constitution. A panel of the California Court of Appeal unanimously affirmed that conclusion. 6 The California Supreme Court, dividing 4-3, reversed. 27 Cal.3d 819, 614 P.2d 742, 167 Cal.Rptr. 84 (1980). Citing Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the majority announced that it would strictly scrutinize § 602. It concluded that the section furthered compelling governmental interests because it ensured that special interest groups could not "corrupt" the initiative process by spending large amounts to support or oppose a ballot measure. Such corruption, the court found, could produce apathetic voters; these governmental interests were held to outweigh the First Amendment interests infringed upon. Finally, it concluded that § 602 accomplished its goal by the least restrictive means available. The California Supreme Court did not consider the disclosure requirements of the ordinance a sufficient prophylaxis to dispel perceptions of corruption.4 7 We noted probable jurisdiction, 450 U.S. 908, 101 S.Ct. 1344, 67 L.Ed.2d 331 (1981), and we reverse. II 8 The appellees concede that the challenged ordinance has an impact on First Amendment rights; the parties disagree only as to the extent of the impact. Long ago this Court admonished that with respect to the First Amendment: 9 "[T]he power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). 10 This was but another way of saying that regulation of First Amendment rights is always subject to exacting judicial review. 11 We begin by recalling that the practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process. The 18th-century Committees of Correspondence and the pamphleteers were early examples of this phenomena and the Federalist Papers were perhaps the most significant and lasting example. The tradition of volunteer committees for collective action has manifested itself in myriad community and public activities; in the political process it can focus on a candidate or on a ballot measure. Its value is that by collective effort individuals can make their views known, when, individually, their voices would be faint or lost. The Court has long viewed the First Amendment t as protecting a marketplace for the clash of different views and conflicting ideas. That concept has been stated and restated almost since the Constitution was drafted. The voters of the city of Berkeley adopted the challenged ordinance which places restrictions on that marketplace. It is irrelevant that the voters rather than a legislative body enacted § 602, because the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation. III A. 12 The Court has acknowledged the importance of freedom of association in guaranteeing the right of people to make their voices heard on public issues: 13 "Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly." NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958). 14 More recently the Court stated: "The First Amendment protects political association as well as political expression." Buckley v. Valeo, supra, at 15, 96 S.Ct., at 632. 15 Buckley also made clear that contributors cannot be protected from the possibility that others will make larger contributions: 16 "[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed 'to secure "the widest possible dissemination of information from diverse and antagonistic sources," ' and ' "to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." ' New York Times Co. v. Sullivan [376 U.S. 254], at 266, 269 [84 S.Ct. 710, at 718, 11 L.Ed.2d 686], quoting Associated Press v. United States, 326 U.S. 1, 20 [65 S.Ct. 1416, 1424, 89 L.Ed. 2013] (1945), and Roth v. United States, 354 U.S. [476], at 484 [77 S.Ct. 1304, at 1308, 1 L.Ed.2d 1498]. The First Amendment's protection against governmental abridgment of free expression cannot properly be made to depend on a person's financial ability to engage in public discussion. Cf. Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 139 [81 S.Ct. 523, 530, 5 L.Ed.2d 464] (1961)." 424 U.S., at 48-49, 96 S.Ct., at 648-649. 17 The Court went on to note that the freedom of association "is diluted if it does not include the right to pool money through contributions, for funds are often essential if 'advocacy' is to be truly or optimally 'effective.' " Id., at 65-66, 96 S.Ct., at 656-657.5 Under the Berkeley ordinance an affluent person can, acting alone, spend without limit to advocate individual views on a ballot measure. It is only when contributions are made in concert with one or more others in the exercise of the right of association that they are restricted by § 602. 18 There are, of course, some activities, legal if engaged in by one, yet illegal if performed in concert with others, but political expression is not one of them. To place a Spartan limit or indeed any limit—on individuals wishing to band together to advance their views on a ballot measure, while placing none on individuals acting alone, is clearly a restraint on the right of association. Section 602 does not seek to mute the voice of one individual, and it cannot be allowed to hobble the collective expressions of a group. 19 Buckley identified a single narrow exception to the rule that limits on political activity were contrary to the First Amendment. The exception relates to the perception of undue influence of large contributors to a candidate : 20 "To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined.. . . 21 ". . . Congress could legitimately conclude that the avoidance of the appearance of improper influence 'is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent.' [CSC v. Letter Carriers ], 413 U.S. [548], at 565 [93 S.Ct. 2880, at 2890, 37 L.Ed.2d 796]." 424 U.S., at 26-27, 96 S.Ct., at 638. 22 Buckley thus sustained limits on contributions to candidates and their committees. 23 Federal Courts of Appeals have recognized that Buckley does not support limitations on contributions to committees formed to favor or oppose ballot measures. In C & C Plywood Corp. v. Hanson, 583 F.2d 421 (1978), the Ninth Circuit struck down a Montana statute prohibiting corporate contributions supporting or opposing ballot measures. In so doing the court noted: 24 "The state interest in preventing corruption of officials, which provided the basis for the Supreme Court's finding in Buckley that restrictions could permissibly be placed on contributions, is not at issue here." Id., at 425. 25 Similarly, the Fifth Circuit interpreted Buckley to hold that 26 "[t]he sole governmental interest that the Supreme Court recognized as a justification for restricting contributions was the prevention of quid pro quo corruption between a contributor and a candidate." Let's Help Florida v. McCrary, 621 F.2d 195, 199 (1980). 27 In First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), we held that a state could not prohibit corporations any more than it could preclude individuals from making contributions or expenditures advocating views on ballot measures. The Bellotti Court relied on Buckley to strike down state legislative limits on advocacy relating to ballot measures: 28 "Referenda are held on issues, not candidates for public office. The risk of corruption perceived in cases involving candidate elections [citations omitted] simply is not present in a popular vote on a public issue. To be sure, corporate advertising may influence the outcome of the vote; this would be its purpose. But the fact that advocacy may persuade the electorate is hardly a reason to suppress it: The Constitution 'protects expression which is eloquent no less than that which is unconvincing.' Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. [684], at 689 [79 S.Ct. 1362, at 1365, 3 L.Ed.2d 1512]." 435 U.S., at 790, 98 S.Ct., at 1423 (footnote omitted). 29 Notwithstanding Buckley and Bellotti, the city of Berkeley argues that § 602 is necessary as a prophylactic measure to make known the identity of supporters and opponents of ballot measures. It is true that when individuals or corporations speak through committees, they often adopt seductive names that may tend to conceal the true identity of the source. Here, there is no risk that the Berkeley voters will be in doubt as to the identity of those whose money supports or opposes a given ballot measure since contributors must make their identities known under § 112 of the ordinance, which requires publication of lists of contributors in advance of the voting. See n. 4, supra. 30 Contributions by individuals to support concerted action by a committee advocating a position on a ballot measure is beyond question a very significant form of political expression. As we have noted, regulation of First Amendment rights is always subject to exacting judicial scrutiny. Supra, at 294. The public interest allegedly advanced by § 602 -identifying the sources of support for and opposition to ballot measures—is insubstantial because voters may identify those sources under the provisions of § 112. In addition, the record in this case does not support the California Supreme Court's conclusion that § 602 is needed to preserve voters' confidence in the ballot measure process. Cf. Bellotti, supra, at 789-790, 98 S.Ct., at 1422-1423. It is clear, therefore, that § 602 does not advance a legitimate governmental interest significant enough to justify its infringement of First Amendment rights.6 B 31 Apart from the impermissible restraint on freedom of association, but virtually inseparable from it in this context, § 602 imposes a significant restraint on the freedom of expression of groups and those individuals who wish to express their views through committees. As we have noted, an individual may make expenditures without limit under § 602 on a ballot measure but may not contribute beyond the $250 limit when joining with others to advocate common views. The contribution limit thus automatically affects expenditures, and limits on expenditures operate as a direct restraint on freedom of expression of a group or committee desiring to engage in political dialogue concerning a ballot measure. 32 Whatever may be the state interest or degree of that interest in regulating and limiting contributions to or expenditures of a candidate or a candidate's committees there is no significant state or public interest in curtailing debate and discussion of a ballot measure. Placing limits on contributions which in turn limit expenditures plainly impairs freedom of expression. The integrity of the political system will be adequately protected if contributors are identified in a public filing revealing the amounts contributed; if it is thought wise, legislation can outlaw anonymous contributions. IV 33 A limit on contributions in this setting need not be analyzed exclusively in terms of the right of association or the right of expression. The two rights overlap and blend; to limit the right of association places an impermissible restraint on the right of expression. The restraint imposed by the Berkeley ordinance on rights of association and in turn on individual and collective rights of expression plainly contravenes both the right of association and the speech guarantees of the First Amendment. Accordingly, the judgment of the California Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. 34 Reversed and remanded. 35 Justice REHNQUIST, concurring. 36 I agree that the judgment of the Supreme Court of California must be reversed in this case. Unlike the factual situation in First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), the Berkeley ordinance was not aimed only at corporations, but sought to impose an across-the-board limitation on the size of contributions to committees formed to support or oppose ballot measure referenda. While one of the appellants here, Mason-McDuffie, is a California corporation, there is no indication that the Berkeley ordinance was aimed at corporations as opposed to individuals. Therefore, my dissenting opinion in First National Bank of Boston v. Bellotti, supra, which relied on the corporate shield which the State had granted to corporations as a form of quid pro quo for the limitation does not come into play. Buckley v. Valeo, 424 U.S. 1, 98 S.Ct. 612, 46 L.Ed.2d 659 (1976), holds that in this situation there is no state interest which could justify a limitation on the exercise of rights guaranteed under the First and Fourteenth Amendments to the United States Constitution. 37 Justice MARSHALL, concurring in the judgment. 38 The Court today holds that a local ordinance restricting the amount of money that an individual can contribute to a committee organized to support or oppose a ballot measure violates the right to freedom of speech and association guaranteed by the First Amendment. In reaching this conclusion, however, the Court fails to indicate whether or not it attaches any constitutional significance to the fact that the Berkeley ordinance seeks to limit contributions as opposed to direct expenditures. As Justice WHITE correctly notes in dissent, beginning with our decision in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), this Court has always drawn a distinction between restrictions on contributions, and direct limitations on the amount an individual can expend for his own speech. As we noted last term in California Medical Assn. v. FEC, 453 U.S. 182, 196, 101 S.Ct. 2712, 2722, 69 L.Ed.2d 567 (1981) (MARSHALL, J., joined by BRENNAN, WHITE, and STEVENS, JJ.), the " 'speech by proxy' " that is achieved through contributions to a political campaign committee "is not the sort of political advocacy that this Court in Buckley found entitled to full First Amendment protection." 39 Because the Court's opinion is silent on the standard of review it is applying to this contributions limitation, I must assume that the Court is following our consistent position that this type of governmental action is subjected to less rigorous scrutiny than a direct restriction on expenditures. The city of Berkeley seeks to justify its ordinance on the ground that it is necessary to maintain voter confidence in government. If I found that the record before the California Supreme Court disclosed sufficient evidence to justify the conclusion that large contributions to ballot measure committees undermined the "confidence of the citizenry in government," First National Bank of Boston v. Bellotti, 435 U.S. 765, 790, 98 S.Ct. 1407, 1423, 55 L.Ed.2d 707 (1978), I would join Justice WHITE in dissent on the ground that the State had demonstrated a sufficient governmental interest to sustain the indirect infringement on First Amendment interests resulting from the operation of the Berkeley ordinance. Like Justices BLACKMUN and O'CONNOR, however, I find no such evidentiary support in this record. I therefore concur in the judgment. 40 Justice BLACKMUN and Justice O'CONNOR, concurring in the judgment. 41 The contribution limitations at issue here encroach directly on political expression and association. Thus, Berkeley's ordinance cannot survive constitutional challenge unless it withstands "exacting scrutiny." First National Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S.Ct. 1407, 1421, 55 L.Ed.2d 707 (1978). To meet this rigorous standard of review, Berkeley must demonstrate that its ordinance advances a sufficiently important governmental interest and employs means " 'closely drawn to avoid unnecessary abridgment' " of First Amendment freedoms. Ibid. (quoting Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 638, 46 L.Ed.2d 659 (1976)). 42 We would hold that Berkeley has neither demonstrated a genuine threat to its important governmental interests nor employed means closely drawn to avoid unnecessary abridgment of protected activity. In Buckley, this Court upheld limitations on contributions to candidates as necessary to prevent contributors from corrupting the representatives to whom the people have delegated political decisions. But curtailment of speech and association in a ballot measure campaign, where the people themselves render the ultimate political decision, cannot be justified on this basis. 43 Nor has Berkeley proved a genuine threat to its interest in maintaining voter confidence in government. We would not deny the legitimacy of that interest. Indeed, in Bellotti, this Court explicitly recognized that "[p]reserving the integrity of the electoral process, preventing corruption, . . . 'sustain[ing] the active, alert responsibility of the individual citizen in a democracy for the wise conduct of government,' " and "[p]reservation of the individual citizen's confidence in government" are "interests of the highest importance" in ballot measure elections. 435 U.S., at 788-789, 98 S.Ct., at 1422, citing and quoting United States v. Automobile Workers, 352 U.S. 567, 570, 575, 77 S.Ct. 529, 533, 1 L.Ed.2d 563 (1957). We did not find those interests threatened in Bellotti, however, in part because the State failed to show "by record or legislative findings that corporate advocacy threatened imminently to undermine democratic processes" or "the confidence of the citizenry in government." 435 U.S., at 789-790, 98 S.Ct., at 1422-1423. The city's evidentiary support in this case is equally sparse. 44 Finally, Berkeley does not justify its contribution limit as necessary to encourage disclosure. We cannot accept the Court's conclusion that that interest is "insubstantial," given the Court's concession that "when individuals or corporations speak through committees, they often adopt seductive names that may tend to conceal the true identity of the source." Ante, at 298. Yet Berkeley need not impose a $250 ceiling on contributions to encourage disclosure so long as it vigorously enforces its already stringent disclosure laws. Ante, at 294, n. 4. 45 We need say no more in order to reverse. Accordingly, we concur in the judgment. 46 Justice WHITE, dissenting. 47 In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the Court upheld restrictions on contributions but struck down limits on expenditures in campaigns for federal office that Congress, the body most expert in the matter, thought equally essential to protect the integrity of the election process. Two years later, a bare majority of the Court, substituting its judgment for that of the Massachusetts Legislature, invalidated that State's prohibition on corporate spending in referendum elections. First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978). Disagreeing with the Court's assumption that those regulations inhibited the free interplay of political advocacy, I would have upheld the expenditure limitations at issue in Buckley and the restrictions contested in Bellotti. 48 This case poses a less encompassing regulation on campaign activity, one tailored to the odd measurements of Buckley and Bellotti. Precisely because it reflects these decisions, the ordinance regulates contributions but not expenditures and does not prohibit corporate spending.1 It is for that very reason perhaps that the effectiveness of the ordinance in preserving the integrity of the referendum process is debatable. Even so, the result here illustrates that the Buckley framework is most problematical and strengthens my belief that there is a proper role for carefully drafted limitations on expenditures. 49 Even under Buckley, however, the Berkeley ordinance represents such a negligible intrusion on expression and association that the measure should be upheld. The ordinance certainly does not go beyond what I understand the First Amendment to permit. For both these reasons, I dissent. 50 * The Berkeley ordinance does not control the quantity or content of speech. Unlike the statute in Bellotti, it does not completely prohibit contributions and expenditures. Any person or company may contribute up to $250. If greater spending is desired, it must be made as an expenditure, and expenditures are not limited or otherwise controlled. Individuals also remain completely unfettered in their ability to join interested groups or otherwise directly participate in the campaign. 51 The Court reaches the conclusion that the ordinance is unconstitutional only by giving Buckley the most extreme reading and by essentially giving the Berkeley ordinance no reading at all. It holds that the contributions involved here are "beyond question a very significant form of political expression." Ante, at 298. Yet in Buckley the Court found that contribution limitations "entai[l] only a marginal restriction upon the contributor's ability to engage in free communication." 424 U.S., at 20-21, 96 S.Ct., at 635. As with contributions to candidates, ballot measure contributions "involv[e] speech by someone other than the contributor" and a limitation on such donations "does not in any way infringe the contributor's freedom to discuss candidates and issues." Id., at 21, 96 S.Ct., at 635. Indeed what today has become "a very significant form of political expression" was held just last Term to involve only "some limited element of protected speech." California Medical Assn. v. FEC, 453 U.S. 182, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981) (MARSHALL, J., joined by BRENNAN, WHITE, and STEVENS, JJ.). " 'Speech by proxy,' " we said, "is not the sort of advocacy that this Court in Buckley found entitled to full First Amendment protection." Id., at 196, 101 S.Ct., at 2715. 52 The Court also finds that the freedom of association is impermissibly compromised by not allowing persons to contribute unlimited funds to committees organized to support or oppose a ballot measure. However, in Buckley, the Court observed that contribution ceilings "leav[e] persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees with financial resources." 424 U.S., at 28, 96 S.Ct., at 639. Associational rights, it was thought, were seriously impinged only by expenditure ceilings—there by virtue of precluding associations from effectively amplifying the voice of their adherents, "the original basis for the recognition of First Amendment protection of the freedom of association." Id., at 22, 96 S.Ct., at 636. See NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958). The Court's concern that this ordinance will "hobble the collective expressions of a group" ante, at 296, is belied by the fact that appellants, having already met their campaign budget, ended all fundraising almost a month before the election. 53 It is bad enough that the Court overstates the extent to which First Amendment interests are implicated. But the Court goes on to assert that the ordinance furthers no legitimate public interest and cannot survive "any degree of scrutiny." Apparently the Court assumes this to be so because the ordinance is not directed at quid pro quos between large contributors and candidates for office, "the single narrow exception" for regulation that it viewed Buckley as endorsing. The Buckley Court, however, found it "unnecessary to look beyond the Act's primary purpose," the prevention of corruption, to uphold the contribution limits, and thus did not consider other possible interests for upholding the restriction. Indeed, at least since United States v. Automobile Workers, 352 U.S. 567, 575, 77 S.Ct. 529, 533, 1 L.Ed.2d 563 (1957), the Court has recognized that "sustaining the active alert responsibility of the individual citizen in a democracy for the wise conduct of government" is a valid state interest. The Bellotti Court took care to note that this objective, along with "[p]reserving the integrity of the electoral process [and] the individual citizen's confidence in government" "are interests of the highest importance." 435 U.S., at 788-789, 98 S.Ct., at 1422. 54 In Bellotti, the Court found inadequate evidence in the record to support these interests, but it suggested that some regulation of corporate spending might be justified if "corporate advocacy threatened imminently to undermine democratic processes, thereby denigrating rather than serving First Amendment interests." Id., at 789, 98 S.Ct., at 1422. The Court suggested that such a situation would arise if it could be shown that "the relative voice of corporations ha[d] been overwhelming [and] . . . significant in influencing referenda." Id., at 789-790, 98 S.Ct., at 1422-1423. It is quite possible that such a test is fairly met in this case. Large contributions, mainly from corporate sources, have skyrocketed as the role of individuals has declined.2 Staggering disparities have developed between spending for and against various ballot measures.3 While it is not possible to prove that heavy spending "bought" a victory on any particular ballot proposition, there is increasing evidence that large contributors are at least able to block the adoption of measures through the initiative process.4 Recognition that enormous contributions from a few institutional sources can overshadow the efforts of individuals may have discouraged participation in ballot measure campaigns5 and undermined public confidence in the referendum process. 55 By restricting the size of contributions, the Berkeley ordinance requires major contributors to communicate directly with the voters. If the ordinance has an ultimate impact on speech, it will be to assure that a diversity of views will be presented to the voters. As such, it will "facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people." Buckley, 424 U.S., at 92-93, 96 S.Ct., at 669-670. Of course, entities remain free to make major direct expenditures. But because political communications must state the source of funds, voters will be able to identify the source of such messages and recognize that the communication reflects, for example, the opinion of a single powerful corporate interest rather than the views of a large number of individuals. As the existence of disclosure laws in many states suggests,6 information concerning who supports or opposes a ballot measure significantly affects voter evaluation of the proposal.7 The Court asserts, without elaboration, that existing disclosure requirements suffice to inform voters of the identity of contributors. Yet, the inadequacy of disclosure laws was a major reason for the adoption of the Berkeley ordinance. Section 101(d) of the ordinance constitutes a finding by the people of Berkeley that "the influence of large campaign contributors is increased because existing laws for disclosure of campaign receipts and expenditures have proved to be inadequate." 56 Admittedly, Berkeley cannot present conclusive evidence of a causal relationship between major undisclosed expenditures and the demise of the referendum as a tool of direct democracy. But the information available suffices to demonstrate that the voters had valid reasons for adopting contribution ceilings. It was on a similar foundation that the Court upheld contribution limits in Buckley and California Medical Assn. v. FEC, 453 U.S. 182, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981). In my view, the ordinance survives scrutiny under the Buckley and Bellotti cases. II 57 There are other grounds for sustaining the ordinance. I continue to believe that because the limitations are contentneutral, and because many regulatory actions will indirectly affect speech in the same manner as regulations in the sphere of campaign finance, "the argument that money is speech and that limiting the flow of money to the speaker violates the First Amendment proves entirely too much." Buckley, supra, at 262, 96 S.Ct., at 747 (WHITE, J., concurring in part and dissenting in part). Every form of regulation—from taxes to compulsory bargaining—has some effect on the ability of individuals and corporations to engage in expressive activity. We must therefore focus on the extent to which expressive and associational activity is restricted by the Berkeley ordinance. That First Amendment interests are implicated should begin, not end, our inquiry. When the infringement is as slight and ephemeral as it is here, the requisite state interest to justify the regulation need not be so high. 58 The interests which justify the Berkeley ordinance can properly be understood only in the context of the historic role of the initiative in California. "California's entire history demonstrates the repeated use of referendums to give citizens a voice on questions of public policy." James v. Valtierra, 402 U.S. 137, 141, 91 S.Ct. 1331, 1333, 28 L.Ed.2d 678 (1971). From its earliest days, it was designed to circumvent the undue influence of large corporate interests on government decisionmaking.8 It served, as President Wilson put it, as a "gun behind the door" to keep political bosses and legislators honest. In more recent years, concerned that the heavy financial participation by corporations in referendum contests has undermined this tool of direct democracy, the voters of California enacted by initiative in 1974 the Political Reform Act, which limited expenditures in statewide ballot measure campaigns,9 and Berkeley voters adopted the ordinance at issue in this case. The role of the initiative in California cannot be separated from its purpose of preventing the dominance of special interests. That is the very history and purpose of the initiative in California, and similarly it is the purpose of ancillary regulations designed to protect it. Both serve to maximize the exchange of political discourse. As in Bellotti, "[t]he Court's fundamental error is its failure to realize that the state regulatory interests . . . are themselves derived from the First Amendment." 435 U.S., at 803-804, 98 S.Ct., at 1429-1430 (WHITE, J., dissenting). 59 Perhaps, as I have said, neither the city of Berkeley nor the State of California can "prove" that elections have been or can be unfairly won by special interest groups spending large sums of money, but there is a widespread conviction in legislative halls, as well as among citizens, that the danger is real. I regret that the Court continues to disregard that hazard. 1 Section 217 of the ordinance defines "measure" as "any City Charter amendment, ordinance or other propositions submitted to a popular vote at an election, whether by initiative, referendum or recall procedure or otherwise, or circulated for the purposes of submission to a popular vote at any election, whether or not the proposition qualifies for the ballot." 2 It was not clear in 1977 whether § 602 would be enforced. The prohibition on contributions to ballot measure campaign committees by corporations and labor unions, § 605, was invalidated in Pacific Gas & Electric Co. v. City of Berkeley, 60 Cal.App.3d 123, 131 Cal.Rptr. 350 (1976). Following Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the city repealed a number of sections of the ordinance, such as § 513, which limited expenditures in support of or in opposition to a ballot measure to the lesser of $7,500 or 10 cents times the number of registered voters. When revising the ordinance to comply with these changes, the city mistakenly labeled § 602, the section challenged in this case, with the notation "do not enforce," but it corrected this error approximately three months before the election involved in this case. 3 Section 604 states: "If any person is found guilty of violating the terms of this chapter, each campaign treasurer who received part or all of the contribution or contributions which constitute the violation shall pay promptly, from available campaign funds, if any, the amount received from such persons in excess of the amount permitted by this chapter to the City Auditor for deposit in the General fund of the City." 4 To assure public awareness of the sources of support for committees, § 112 of the ordinance requires the publication of a list of all contributors of more than $50 in local newspapers twice during the last seven days of a campaign. 5 The value of the right to associate is illustrated by the cost of reaching the public. Appellants represent that the cost of a single mailing to each of the 71,088 persons registered to vote in Berkeley in 1977 was $12,800. App. 32. The cost of a full-page advertisement in a Berkeley area newspaper, the Independent Gazette, was $1,620. Note, 79 Mich.L.Rev. 1421, 1433, n. 54 (1981). 6 The dissent argues a case not before the Court. Its references to Bellotti relate to corporate contributions; § 602 limits contributions by "persons." The dissent's references to Buckley relate to contributions to candidates and their committees; the case before us relates to contributions to committees favoring or opposing ballot measures. 1 As originally passed by the voters, the Berkeley ordinance restricted expenditures as well as contributions to ballot measure campaigns. Following Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), and the California Supreme Court's invalidation of statewide expenditure limitations in ballot measure campaigns, Citizens for Jobs & Energy v. Fair Political Practices Comm'n, 16 Cal.3d 671, 129 Cal.Rptr. 106, 547 P.2d 1386 (1976), the city of Berkeley repealed the expenditure limitations. In addition, the measure's original prohibition on corporate and labor union contributions to ballot measure campaigns was invalidated. Pacific Gas & Electric Co. v. City of Berkeley, 60 Cal.App.3d 123, 131 Cal.Rptr. 350 (1976). 2 The California Fair Political Practices Commission has reported that campaign contributions from private individuals in the November 1980 general election totaled only one-half of the individual contributions given during the 1978 general election and represented only 5% of all the contributions made. California Fair Political Practices Commission, Campaign Contribution and Spending Report (1981). The chairman of the Commission concluded that the figures demonstrate an " 'alarming yet steady erosion of the private individual as a force in the political process.' " California Fair Political Practices Commission's Press Release 81-14, May 28, 1981. See also n. 3, infra. 3 In a 1978 initiative over the construction of an oil storage terminal in Long Beach, Cal., Standard Oil of Ohio "contributed" all $864,568 spent by the Long Beach Civil Action Committee in support of the measure; opponents spent $17,721. S. Lydenberg, Bankrolling Ballots: The Role of Business in Financing State Ballot Question Campaigns 37 (1979). In 1980, three ballot measures were rejected by California voters statewide. One was an initiative which sought to circumscribe smoking in public places. The committee supporting the measure collected $676,216; $518,337 in contributions under $1,000. Id., at 33. An opposing group, Californians Against Regulatory Excess, collected $2,750,987. Of this amount, over $2.5 million was contributed in amounts of over $10,000, and four tobacco companies contributed between $300,000 and $1 million each. S. Lydenberg, Bankrolling Ballots: Update 1980, pp. 44-45 (1981). A second example is an initiative which would have taxed large energy companies to provide revenue to finance public transportation and to develop alternative energy sources. Californians for Fair Taxation, an association opposed to the measure, received nearly $6 million in contributions, of which approximately $5 million was given by large corporations. Proponents mustered but $464,000. Id., at 50-51. The third measure, like the initiative in this litigation, concerned rent control. Proponents, who sought to repeal existing rent control ordinances, gathered $6,867,108, mostly in contributions over $1,000; opponents collected $195,496, mostly in contributions under $1,000. Id., at 99-101. 4 Several studies have shown that large amounts of money skew the outcome of local ballot measure campaigns. Professor Lowenstein's investigation found that of 15 propositions supported by significant one-sided spending, defined as spending of at least $250,000 and twice as much as the opposite side, 7 were successful and 8 were defeated. On the other hand, of 10 propositions opposed by significant one-sided spending, 9 were defeated and only 1 was successful. D. Lowenstein, Campaign Spending and Ballot Propositions (delivered at annual meeting of American Political Science Association, New York City, Sept. 5, 1981). A study of three Colorado initiatives found that in each of the races the pro-initiative side held a commanding lead which it lost as the campaign progressed. Corporate-backed opposition forces heavily outspent their counterparts. On election day, each initiative was defeated. Mastro, Costlow, & Sanchez, Taking the Initiative: Corporate Control of the Referendum Process Through Media Spending and What to Do About It, 32 Fed.Comm.L.J. 315 (1980) (hereinafter Mastro). See also J. Shockley, The Initiative Process in Colorado Politics: An Assessment (1980). Nationwide, a study of 19 recent campaigns found that the side with corporate backing outspent opponents by better than 2 to 1 in 15 campaigns and won in 12 of them. S. Lydenberg, Bankrolling Ballots: Update 1980 (1981). 5 Voter turnout in Berkeley municipal elections has decreased from 65.9% in April 1973 to 45.6% in April 1981. Brief for Appellees, 7. 6 See Public Communications Office, Federal Election Commission, Campaign Finance Law 81 (1981). See also Mastro, Costlow, & Sanchez, supra, at 353-354. 7 See Brown v. Superior Court, 5 Cal.3d 509, 522, 96 Cal.Rptr. 584, 592, 487 P.2d 1224, 1232 (1971) ("A ballot measure is devoid of personality and voters who seek to judge the merits of issues by reliance on the personality of those supporting different points of view can do so only if they are made aware, prior to election, of those who are the real advocates for or against the measure"). 8 See V. Key & W. Crouch, The Initiative and Referendum in California 425-432 (1939); Lee, California, in Referendums: A Comparative Study of Practice and Theory, 87-88 (D. Butler & A. Ranney eds. 1978); Note, The California Initiative Process: A Suggestion for Reform, 48 S.Cal.L.Rev. 922, 923 (1975) ("The primary motivation for the initiative process in California was the public's desire to counter the lobbyist, the conduit of legislative influence exercised by and for economic and other special interests"). 9 Political Reform Act of 1979, Cal.Gov't Code Ann. § 81000 et seq. (West 1976). See n. 1, supra.

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454 U.S. 351 102 S.Ct. 962 70 L.Ed.2d 539 TENNESSEEv.ARKANSAS No. 77 Supreme Court of the United States December 14, 1981 On Bill of Complaint. DECREE IT IS ORDERED, ADJUDGED AND DECREED THAT: 1 1. The boundary line between the States of Tennessee and Arkansas in the area in controversy is fixed as geodetically described in Exhibit A, appended hereto, and as shown on Appendix E to the Special Master's Report filed with this Court on April 13, 1981. Said Exhibit E is incorporated by reference herein. 2 2. The costs of this proceeding shall be divided equally between the parties. 3 EXHIBIT "A" 4 TENNESSEE—ARKANSAS STATE BOUNDARY IN THE ELMOT BAR-ISLAND 30 SECTOR OF THE MISSISSIPPI RIVER 5 The following is a description, by geodetic position (North American Datum) of the locus of the Tennessee-Arkansas State Boundary that became fixed in the abandoned Fletcher Bend Channel that bounds Elmot Bar-Island 30 on the North and West. This boundary, lying between North Latitude 35x 40' 30.8" and North 35x 45' 34.6" and West Longitude 89x 52' 35" and West Longitude 89x 57' 31.5", begins at the head of Elmot Bar-Island 30 Chute Channel and thence runs Northwestward, Southwestward, Southward and Southeastward, along fixed (dead) thalweg and last steamboat navigation course in the abandoned Fletcher Bend Channel to the foot of Elmot Bar-Island 30 Chute Channel. 6 The Locus of the said Tennessee-Arkansas State Boundary is depicted on the 1973-1975 Mississippi River Hydrographic Survey and is described as beginning at the head of the Elmot Bar-Island 30 Chute Channel at Point P-1 at North Latitude 35x 44' 30.8" and West Longitude 89x 52' 35"; 7 Thence North to Point P-2, Lat. 35x 44' 16.8" and Long. 89x 52' 35"; 8 Thence Northward to Point P-3, Lat. 35x 44' 28.7" and Long. 89x 52' 38"; 9 Thence Northwestward to Point-4, Lat. 35x 44' 42" and Long. 89x 53'; 10 Thence Northwestward to Point-5, Lat. 35x 45' and Long. 89x 53' 22"; 11 Thence Northwestward to Point-6, Lat. 35x 45' 10" and Long. 89x 53' 35"; 12 Thence Northwestward to Point-7, Lat. 35x 45' 17.8" and Long. 89x 53' 47"; 13 Thence Northwestward to Point-8, Lat. 35x 45' 25.5" and Long. 89x 54'; 14 Thence Northwestward to Point-9, Lat. 35x 45' 34.6" and Long. 89x 54' 18"; 15 Thence Westward to Point-10, Lat. 35x 45' 33.5" and Long. 89x 54' 30"; 16 Thence Southwestward to Point-11, Lat. 35x 45' 29.7" and Long. 89x 54' 40"; 17 Thence Southwestward to Point-12, Lat. 35x 45' 23.8" and Long. 89x 54' 47"; 18 Thence Southwestward to Point-13, Lat. 35x 45' 15.6" and Long. 89x 55'; 19 Thence Southwestward to Point-14, Lat. 35x 45' and Long. 89x 55' 30"; 20 Thence Southwestward to Point-15, Lat. 35x 44' 46.5" and Long. 89x 56'; 21 Thence Southwestward to Point-16, Lat. 35x 44' 36.6" and Long. 89x 56' 20"; 22 Thence Southwestward to Point-17, Lat. 35x 44' 27.9" and Long. 89x 56' 40"; Thence Southwestward to Point-18, Lat. 35x 44' 18.9" and Long. 89x 57'; 23 Thence Southwestward to Point-19, Lat. 35x 44' 10.1" and Long. 89x 57' 14"; 24 Thence Southwestward to Point-20, Lat. 35x 44' and Long. 89x 57' 23"; 25 Thence Southwestward to Point-21, Lat. 35x 43' 39.2" and Long. 89x 57' 31"; 26 Thence Southward to Point-22, Lat. 35x 43' 23.9" and Long. 89x 57' 31.5"; 27 Thence Southward to Point-23, Lat. 35x 43' and Long. 89x 57' 28.5"; 28 Thence Southward to Point-24, Lat. 35x 42' 42.6" and Long. 89x 57' 25"; 29 Thence South to Point-25, Lat. 35x 42' 21.3" and Long. 89x 57' 25"; 30 Thence Southward to Point-26, Lat. 35x 42' and Long. 89x 57' 23"; 31 Thence Southward to Point-27, Lat. 35x 41' 43.6" and Long. 89x 57' 23.5"; 32 Thence Southward to Point-28, Lat. 35x 41' 26.1" and Long. 89x 57' 21"; 33 Thence Southeastward to Point-29, Lat. 35x 41' 11.4" and Long. 89x 57' 12"; 34 Thence Southeastward to Point-30, Lat. 35x 41' and Long. 89x 57' 03.5"; 35 Thence Southeastward to Point-31, Lat. 35x 40' 56.4" and Long. 89x 57'; 36 Thence Southeastward to Point-32, Lat. 35x 40' 30.8" and Long. 89x 56' 34" at the foot of the Elmot Bar-Island 30 Chute Channel.

1011

454 U.S. 354 102 S.Ct. 695 70 L.Ed.2d 542 CENTRAL TRUST COMPANY, ROCHESTER, N. Y.v.OFFICIAL CREDITORS' COMMITTEE OF GEIGER ENTERPRISES, INC., et al. No. 80-1565. Jan. 11, 1982. PER CURIAM. 1 On August 15, 1979, Geiger Enterprises, Inc. (Geiger), filed a petition in the United States District Court for the Western District of New York seeking relief under Chapter XI of the Bankruptcy Act of 1898 (formerly 11 U.S.C. § 701 et seq.) (Bankruptcy Act). Geiger continued operating its business as a debtor-in-possession, and numerous creditors filed claims, including a claim by the United States for $2,075,674.64 in unpaid taxes. Respondent Official Creditors' Committee was established by the Bankruptcy Court to represent the interests of creditors with relatively small claims. 2 On October 1, 1979, the Bankruptcy Reform Act of 1978, Pub.L. 95-598, 92 Stat. 2549, 11 U.S.C. § 101 et seq. (1976 ed., Supp.IV) (New Code), became effective. Thereafter, several of Geiger's wholly owned subsidiaries and affiliate corporations filed petitions for relief under Chapter 11 of the New Code. On January 9, 1980, Geiger moved to dismiss its Chapter XI petition on the representation that if dismissal were granted it too would immediately file a petition under Chapter 11 of the New Code and would seek substantive consolidation of its proceedings with the proceedings of its subsidiary and affiliate corporations. 3 This motion was opposed by petitioner, a secured creditor, and by the United States. Both opponents argued that such dismissal was prohibited by § 403(a) of the New Code, a transitional rule enacted by Congress to govern cases pending under the Bankruptcy Act on the effective day of the New Code. Section 403(a) provides: 4 "A case commenced under the Bankruptcy Act, and all matters and proceedings in or relating to any such case, shall be conducted and determined under such Act as if [the New Code] had not been enacted, and the substantive rights of parties in connection with any such bankruptcy case, matter, or proceeding shall continue to be governed by the law applicable to such case, matter, or proceeding as if the [New Code] had not been enacted." 92 Stat. 2683, note preceding 11 U.S.C. § 101 (1976 ed., Supp.IV). 5 The Bankruptcy Court rejected this argument and granted the motion to dismiss Geiger's Chapter XI petition, relying primarily upon Rule 11-42(a) of the Rules of Bankruptcy Procedure, which provides: 6 "Voluntary Dismissal or Conversion to Bankruptcy. 7 "The debtor may file an application or motion to dismiss the case or to convert it to bankruptcy at any time prior to confirmation or, where the court has retained jurisdiction, after confirmation. On filing of such application or motion, the court shall . . . enter an order after hearing on notice dismissing the case or adjudicating him a bankrupt whichever may be in the best interest of the estate." 8 The Bankruptcy Court characterized this Rule as "unique in that the purpose of dismissal is to permit refiling under compatible substantive law provisions and [to] permit substantive consolidation," and found that consolidation of Geiger's proceedings with the proceedings of its subsidiaries and affiliates would "be in the best interest of this estate." App. to Pet. for Cert. A-11. Thus, on February 8, 1980, Geiger's original petition was dismissed and Geiger immediately filed a petition for relief under Chapter 11 of the New Code. 9 The United States District Court for the Western District of New York reversed. It held "the plain meaning of section 403(a)" to be "that the bankruptcy court must apply the [Bankruptcy] Act to cases filed prior to October 1, 1979 and that such cases shall proceed as if the New [Code] had never been enacted." Id., at A-19. 10 On appeal, the District Court's decision was in turn reversed by the United States Court of Appeals for the Second Circuit. In re Geiger Enterprises, Inc., 635 F.2d 106 (1980). The Court of Appeals held "that Rule 11-42(a) must be read in conjunction with section 403(a)" to permit dismissal and refiling in certain cases, and that "[t]he operative test is whether the estate's best interest will be served by" such procedure. The Court of Appeals qualified this test by holding that dismissal and refiling would be improper if they prejudiced the claims of the creditors, and remanded the case so that the Bankruptcy Court and District Court could consider the existence of actual prejudice. 11 Petitioner has sought review in this Court, arguing that the decision of the Court of Appeals "conflicts with the plain meaning of § 403(a) as well as its legislative history," and "provides a procedural device by which the clear Congressional intent is easily negated." Pet. for Cert. 9. We agree. 12 The language of § 403(a) is unequivocal. It provides that cases filed under the Bankruptcy Act "shall be conducted and determined under such Act as if [the New Code] had not been enacted." It makes no exception for petitions to be refiled under the New Code; indeed, it expressly provides that petitions such as Geiger's "shall continue to be governed" by the Bankruptcy Act. Any exception to this mandate recognized by the Court of Appeals is of wholly judicial creation, supported by neither the language of the New Code nor its legislative history.1 13 Nor does Rule 11-42(a) provide authority for the procedure. The language of the Rule clearly contemplates a voluntary dismissal which results in an adjudication of the debtor's bankruptcy or one which revests title of all property in the debtor and removes from it the protection of the bankruptcy laws. It does not contemplate a dismissal, such as the one in this case, which neither declares the debtor bankrupt nor restores the creditors' rights against the debtor's property, but simply holds matters in abeyance while the debtor files its petition under a new law.2 Even if it were possible to so interpret Rule 11-42(a), the Rule would not modify the clear command of § 403(a). The Rules of Bankruptcy Procedure are applicable under the New Code only "to the extent not inconsistent with the amendments made by [the New Code]."3 Transitional Rules § 405(d), 92 Stat. 2685. As interpreted by the Court of Appeals, Rule 11-42(a) clearly conflicts with § 403(a). 14 Thus, the Court of Appeals erred when it "amended" § 403(a) to permit refiling under the New Code if such refiling would not actually prejudice the creditors. That the Court of Appeals thought consolidation of Geiger's petition with those of its subsidiaries and affiliates would serve the best interests of the estate, or would conserve judicial resources, does not justify its disregard of a clear congressional directive. "It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the law-making body which passed it, the sole function of the courts is to enforce it according to its terms." Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917). While the Court of Appeals may have reached a practical result, it was a result inconsistent with the unambiguous language used by Congress. Accordingly, the petition for a writ of certiorari is granted, and the judgment is reversed. 15 It is so ordered. 16 Justice STEVENS, with whom Justice MARSHALL joins, dissenting. 17 If a bankruptcy judge, with the consent of all parties to a proceeding commenced prior to October 1, 1979, correctly concluded that the best interest of the estate and all its creditors and the judiciary would be served by permitting the voluntary dismissal of that proceeding and the immediate commencement of a new proceeding under the New Code, would that action be prohibited by § 403(a) of the Bankruptcy Reform Act of 1978, Pub.L. 95-598, 92 Stat. 2683, note preceding 11 U.S.C. § 101 (1976 ed., Supp.IV)? I think not. Although two creditors objected to the dismissal in this case, the Court today leaves no doubt about its answer to this question. Despite its recognition that "the Court of Appeals may have reached a practical result," ante, at this page, and that "consolidation of Geiger's petition with those of its subsidiaries and affiliates would serve the best interests of the estate [and] would conserve judicial resources," ante, at 359, the Court holds that Congress expressly forbade such a result when it enacted § 403(a). 18 It seems most unlikely that Congress would have commanded the result the Court reaches today if it had contemplated the set of facts confronting the Bankruptcy Court in this case. The purpose of the New Code was to modernize the bankruptcy laws and to make the system more workable and efficient. H.R.Rep.No.95-595, pp. 3, 52 (1977). Permitting Geiger to dismiss its petition under the Bankruptcy Act and to file a petition under the New Code, thereby facilitating consolidation of its petition with the petitions of its numerous affiliates and subsidiaries, is perfectly consistent with the spirit of both bankruptcy statutes. 19 Moreover, I believe that the Court of Appeals' holding is faithful to the language of § 403(a). That provision contains two commands relating to proceedings commenced prior to the effective date of the New Code; one command is procedural and the other is substantive. The procedural command requires that proceedings commenced prior to October 1, 1979, be conducted under the Bankruptcy Act.1 The substantive command requires that the rights of the parties in such proceedings continue to be governed by that statute.2 20 The procedural command was followed in this case. The original petition was filed on August 15, 1979, and was dismissed pursuant to Rule 11-42(a) of the Rules applicable to cases commenced under the Bankruptcy Act. That Rule expressly authorizes a voluntary dismissal based upon a finding that such action is "in the best interest of the estate."3 As the Court of Appeals noted, "the best interests of the estate must be interpreted to mean those of the creditors as well as the debtor,"4 and whether dismissal of the original petition and refiling under the New Code is in the best interest of the creditors in this case is not clear from the record. The Court of Appeals instructed the Bankruptcy Court to consider on remand whether a refiling under the New Code and consolidation of the bankruptcy petitions of Geiger and its affiliates and subsidiaries would affect the creditors' substantive rights. If substantive rights of the creditors "are in fact materially prejudiced," In re Geiger Enterprises, Inc., 635 F.2d 106, 109 (CA2 1980), then dismissal of the original petition will not be permitted. If dismissal is determined to be in the best interest of all parties, then such action is permitted by Rule 11-42(a); the procedural command of § 403(a), therefore, will have been satisfied. 21 Likewise, the Court of Appeals' disposition assures that the substantive command of § 403(a) will be followed. If dismissal is in the best interest of the estate, meaning in this case that the creditors' substantive rights are not materially prejudiced, then dismissal of the original petition is authorized by the Bankruptcy Act. In such a case, the creditors' substantive rights would have been governed by the Bankruptcy Act, not by the New Code. This satisfies the substantive command of § 403(a). 22 Even if I were persuaded that Congress intended to enact the inflexible rule the Court enforces today, I still would not decide that issue in this case. It is probable that the question raised by the certiorari petition would become moot if the Court were to follow its normal practice of declining to review interlocutory orders.5 The United States, which has a $2,075,674.64 tax claim at stake, while agreeing with this Court's reading of § 403(a), recognizes that the question is of "limited administrative importance" and does not merit review by this Court.6 The only practical consequence of the Court's holding is to impose unnecessary work on busy federal judges. The Bankruptcy Court and three Circuit Judges recognized that it would be more efficient to conduct a single consolidated proceeding rather than separate proceedings for a group of affiliated bankruptcy petitioners. Meanwhile, this Court expends its scarce time and energy in a case that at best involves an error that is harmless to the parties and the law. 23 I respectfully dissent. 1 The legislative history of the New Code supports the unequivocal language of § 403(a). The House Report on the New Code explained: "The first phase of transition begins on October 1, [1979], the primary effective date of the bill. On that date, the new substantive law of bankruptcy as proposed by the bill will be put into effect. It will apply to all cases commenced on or after October 1, [1979]. The application of the new law will only be to new cases, however. Cases commenced before October 1, [1979], will continue to be governed by the Bankruptcy Act, as in effect September 30, [1979], and by all other applicable laws in effect on that date. Those cases will proceed as though this bill had not been enacted." H.R.Rep.No.95-595, pp. 287-288 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6244 (footnotes omitted). The same Report also states: "[Section 403(a) ] continues cases pending as of the effective date of the bill without change. The new law will not affect cases commenced under the old law. Those cases will proceed as though this Act did not take effect. The section applies to substantive as well as procedural matters." Id., at 459. 2 Rule 11-42(a) provides that upon voluntary dismissal, the Bankruptcy Court will either "enter an order adjudicating the debtor a bankrupt," or will "enter an order . . . dismissing the case." If the latter order is entered, subdivision (d) of the Rule provides that "[a] certified copy of the order of dismissal under this rule shall constitute conclusive evidence of the revesting of the debtor's title to his property." Thus, if voluntary dismissal does not result in an adjudication of bankruptcy, it revests title to all property in the debtor and removes from it the protection of the bankruptcy petition. As one commentator has stated: "It should be apparent that, upon dismissal, the debtor is placed exactly where he was before the Chapter XI case was filed and it is therefore unnecessary in the statute to provide for something so plain. When an order of confirmation in a Chapter XI [proceeding] is entered it has legal consequence and among the legal consequences is the revestment of title to property in the debtor, and of the divestment by the court of its jurisdiction over the debtor and its property wherever located. . . . Rule 11-42(d) merely makes plain not only that the debtor is revested with title to its property but, also, that a certified copy of the order of dismissal shall constitute conclusive evidence of that revestment. This, in effect, preserves to the creditors who have been informed of the dismissal under Rule 11-42(c), their remedies against the debtor's property." 14 W. Collier, Bankruptcy ¶ 11-42.07 (14th ed.1976). As is evident from this discussion, the dissent misperceives the purpose of Rule 11-42 when it argues that the Rule provides the mechanism by which the procedural and substantive commands of § 403(a) were satisfied in this case. The Rule authorizes only one kind of dismissal, one that results in a full discharge from bankruptcy. Geiger was not discharged from bankruptcy by the dismissal below. Rather, the dismissal was entered solely to permit Geiger to file under the New Code, that is, to permit it to avoid the prohibition of § 403(a). 3 Section 405(d) of the Transitional Rules of the New Code provides: "The [R]ules [of Bankruptcy Procedure] prescribed under section 2075 of title 28 of the United States Code and in effect on September 30, 1979, shall apply to cases under title 11, to the extent not inconsistent with the amendments made by this Act, or with this Act, until such rules are repealed or superseded by rules prescribed and effective under such section, as amended by section 248 of this Act." 92 Stat. 2685, note preceding 28 U.S.C. § 1471 (1976 ed., Supp.III). Although this provision describes the Rules' effect on cases filed under the New Code, and thus does not directly apply to Geiger's first petition which was filed under the Bankruptcy Act, it clearly demonstrates Congress' intent that the old Bankruptcy Rules not override provisions of the New Code. Section 403(a) does apply to Geiger's original petition, and the Court of Appeals erroneously relied upon Rule 11-42(a) to override its clear command. 1 "A case commenced under the Bankruptcy Act, and all matters and proceedings in or relating to any such case, shall be conducted and determined under such Act as if [the New Code] had not been enacted . . . ." 92 Stat. 2683, note preceding 11 U.S.C. § 101 (1976 ed., Supp.IV). 2 Section 403(a) continues: "[A]nd the substantive rights of parties in connection with any such bankruptcy case, matter, or proceeding shall continue to be governed by the law applicable to such case, matter, or proceeding as if the [New Code] had not been enacted." 3 Rule 11-42(a) relating to voluntary dismissals provides in pertinent part: "On the filing of such application or motion, the court shall . . . enter an order, after hearing on notice dismissing the case or adjudicating him a bankrupt whichever may be in the best interest of the estate." In this case the Bankruptcy Judge, after a full hearing, made these findings: "The motion is governed by the provisions of 11-42 of the Rules of Bankruptcy Procedure. It is unique in that the purpose of dismissal is to permit refiling under compatible substantive law provisions and distribution rules and, thus, permit substantive consolidation. In opposing the motion, the parties have argued that Congress did not intend to permit this result. To the contrary, there is no reason to believe that the Congress even envisioned a problem such as that at hand. "Practical, economical and expeditious administration and the avoidance of unnecessary and costly litigation by the alternative approach suggested by the Government [piercing the corporate veil of the affiliate and subsidiary corporations and bringing them under the Bankruptcy Act] render dismissal to permit refiling to be in the best interest of this estate." App. to Pet. for Cert. A-11. 4 In re Geiger Enterprises, Inc., 635 F.2d 106, 109 (CA2 1980) (citing Banque de Financement v. First National Bank of Boston, 568 F.2d 911, 921-922 (CA2 1977)). 5 Considering only one creditor, the United States, given the differences in treatment accorded tax claims under the two statutes, see 635 F.2d, at 109, it is unlikely that the Bankruptcy Court would find that it is in the best interest of the Government to proceed under the New Code. 6 In explaining why there is no need for this Court to grant certiorari, the Solicitor General stated: "Despite the error of the decision below, we did not seek certiorari because of the absence of a conflict among the courts of appeals, the possibility that the government may prevail in the proceedings on remand, and the limited administrative importance of the question presented dealing with the transitional rules governing the enactment of the new Bankruptcy Code." Memorandum for United States 5.

78

454 U.S. 370 102 S.Ct. 703 70 L.Ed.2d 556 Terrell Don HUTTO, Director, Virginia State Department of Corrections, et al.v.Roger Trenton DAVIS. No. 81-23. Jan. 11, 1982. Rehearing Denied March 22, 1982. See 455 U.S. 1038, 102 S.Ct. 1742. PER CURIAM. 1 On October 26, 1973, law enforcement officers raided respondent's home and seized approximately nine ounces of marihuana and assorted drug paraphernalia. Several days before the raid, officers had tape-recorded a transaction in which respondent had sold marihuana and other controlled substances to a police informant. With the aid of the seized evidence and the tape recording, respondent was convicted in Virginia state court of possession with intent to distribute and distribution of marihuana. The jury imposed a fine of $10,000 and a prison term of 20 years on each of the two counts, the prison terms to run consecutively. At the time of respondent's conviction, Virginia law authorized fines of up to $25,000 and prison terms of not less than 5 nor more than 40 years for each of respondent's offenses. Davis v. Davis, 585 F.2d 1226, 1229 (CA4 1978). 2 After exhausting direct appeal, respondent brought a habeas action in the United States District Court for the Western District of Virginia, asserting that a 40-year sentence was so grossly disproportionate to the crime of possessing less than nine ounces of marihuana that it constituted cruel and unusual punishment as proscribed by the Eighth and Fourteenth Amendments. The District Court, relying primarily upon the four factors set forth in Hart v. Coiner, 483 F.2d 136 (CA4 1973), cert. denied, 415 U.S. 938, 94 S.Ct. 1454, 39 L.Ed.2d 495 (1974), agreed: 3 "After examining the nature of the offense, the legislative purpose behind the punishment, the punishment in the Commonwealth of Virginia for other offenses, and the punishment actually imposed for the same or similar offenses in Virginia, this court must necessarily conclude that a sentence of forty years and twenty thousand dollars in fines is so grossly out of proportion to the severity of the crimes as to constitute cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution." Davis v. Zahradnick, 432 F.Supp. 444, 453 (1977). 4 Accordingly, the District Court issued a writ of habeas corpus. 5 A panel of the United States Court of Appeals for the Fourth Circuit reversed. Davis v. Davis, supra. The panel correctly noted that this Court "has never found a sentence for a term of years within the limits authorized by statute to be, by itself, a cruel and unusual punishment," 585 F.2d, at 1229, and held that respondent had failed to show that his sentence, in light of the factors known to the jury1 and the punishment authorized by Virginia, was sufficiently extraordinary to violate the Eighth and Fourteenth Amendments. Id., at 1233. The decision was short-lived. Sitting en banc, the Court of Appeals reheard the case and, "for reasons sufficiently stated by the district judge in his opinion," affirmed the award of habeas relief. Davis v. Davis, 601 F.2d 153, 154 (1979). We granted certiorari, vacated the judgment of the Court of Appeals, and remanded the case for reconsideration in light of our decision in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). Sub nom. Hutto v. Davis, 445 U.S. 947, 100 S.Ct. 1593, 63 L.Ed.2d 782 (1980). The Court of Appeals again affirmed the District Court, this time by an equally divided vote. Davis v. Davis, 646 F.2d 123 (1981). Because the Court of Appeals failed to heed our decision in Rummel, we now reverse. 6 The petitioner in Rummel was sentenced to life imprisonment under the Texas recidivist statute upon being convicted of his third felony: obtaining $120.75 by false pretenses. He had previously been convicted of passing a forged check in the amount of $28.36, and of fraudulently using a credit card to obtain $80 worth of goods or services. 445 U.S., at 265-266, 100 S.Ct., at 1135-1136. Like the respondent in this case, Rummel argued that the length of his imprisonment was so "grossly disproportionate" to the crime for which he was sentenced that it violated the ban on cruel and unusual punishment of the Eighth and Fourteenth Amendments. In rejecting that argument, we distinguished between punishments—such as the death penalty—which by their very nature differ from all other forms of conventionally accepted punishment, and punishments which differ from others only in duration. This distinction was based upon two factors. First, this "Court's Eighth Amendment judgments should neither be nor appear to be merely the subjective views of individual Justices." Id., at 275, 100 S.Ct., at 1140. And second, the excessiveness of one prison term as compared to another is invariably a subjective determination, there being no clear way to make "any constitutional distinction between one term of years and a shorter or longer term of years." Ibid. Thus, we concluded that "one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, . . . the length of the sentence actually imposed is purely a matter of legislative prerogative." Id., at 274, 100 S.Ct., at 1139. Accordingly, we held that Rummel's life sentence did not violate the constitutional ban on cruel and unusual punishment. 7 As mentioned above, the District Court found respondent's sentence to be unconstitutional by applying the four-part test of Hart v. Coiner, supra. Hart also was relied upon by the lower-court dissenters in Rummel, and was implicitly disapproved by our rejection of the dissenters' view. Not only did we expressly recognize Hart as the primary opposing authority, 445 U.S., at 267, 269, 100 S.Ct., at 1135, 1136, but our opinion also disapproved each of its four "objective" factors.2 Because the District Court's grant of habeas relief was clearly guided by these factors, the Court of Appeals erred in affirming. 8 In short, Rummel stands for the proposition that federal courts should be "reluctan[t] to review legislatively mandated terms of imprisonment," id. at 274, 100 S.Ct., at 1139, and that "successful challenges to the proportionality of particular sentences" should be "exceedingly rare," id. at 272, 100 S.Ct., at 1138.3 By affirming the District Court decision after our decision in Rummel, the Court of Appeals sanctioned an intrusion into the basic line-drawing process that is "properly within the province of legislatures, not courts." Id., at 275-276, 100 S.Ct., at 1139-1140. More importantly, however, the Court of Appeals could be viewed as having ignored, consciously or unconsciously, the hierarchy of the federal court system created by the Constitution and Congress. Admittedly, the Members of this Court decide cases "by virtue of their commissions, not their competence." And arguments may be made one way or the other whether the present case is distinguishable, except as to its facts, from Rummel. But unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be. 9 Accordingly, the petition for a writ of certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded to the District Court with instructions to dismiss respondent's habeas petition. 10 It is so ordered. 11 Justice POWELL, concurring in the judgment. 12 The Court holds that the Eighth Amendment countenances a prison term of 40 years and a fine of $20,000 for respondent's possession and distribution of approximately nine ounces of marihuana said to have a street value of about $200. I view the sentence as unjust and disproportionate to the offense. Nevertheless, for the reasons stated below I reluctantly conclude that the Court's decision in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), is controlling on the facts before us. Accordingly, I join the judgment only. 13 * The respondent Davis met Eads in prison. During Eads' confinement, his wife had become a drug user. Concerned about this development and its effect on their 2-year-old child, Eads offered to cooperate with the police "to assist in the exposure and arrest of those supplying drugs to his wife and any illicit drug distributor in the area, including Davis who Eads identified as an active drug dealer in Wythe County." Davis v. Davis, 585 F.2d 1226, 1228 (CA4 1978). 14 On furlough from prison, Eads told Davis he wished to buy drugs for himself and some mutual friends currently in prison. Shortly thereafter, the two went to Davis' home where Davis sold Eads three ounces of marihuana for $74. Davis also gave Eads "drug pills which included L.S.D. and another illicit controlled drug." Ibid. A police raid on Davis' home later uncovered about six ounces of marihuana, two scales, and other drug paraphernalia. 15 Davis was found guilty of both distributing marihuana and of possessing marihuana with intent to distribute. On each count, he received a sentence of 20 years' imprisonment and a $10,000 fine. These sentences were imposed on a consecutive basis. The District Court granted his petition for a writ of habeas corpus because the sentences were "so grossly out of proportion to the severity of the crimes as to constitute cruel and unusual punishment . . . ."1 This judgment was reversed on appeal, Davis v. Davis, supra, but reinstated by the Court of Appeals on rehearing en banc.2 We remanded for reconsideration in light of our decision in Rummel v. Estelle, supra.3 By an equally divided vote en banc, the Court of Appeals again affirmed.4 II 16 The sole authority upon which the Court today relies is its decision in Rummel v. Estelle. Rummel decided that the Eighth Amendment's proscription of cruel and unusual punishments5 was not transgressed by the imposition of life imprisonment for a recidivist's third felony, each a nonviolent fraud involving less than $125. The Court also observed, however: "This is not to say that a proportionality principle [viz., that grossly disproportionate punishments are unconstitutional] would not come into play in the extreme example mentioned by the dissent, post, at 288, if a legislature made overtime parking a felony punishable by life imprisonment." 445 U.S., at 274, n. 11, 100 S.Ct., at 1139, n. 11. 17 The Rummel Court therefore did not reject the proportionality principle long settled by our cases.6 It did take such a restricted view of the principle that—in the future—appellate courts, duty bound to follow the decision of this Court, often will be compelled to accept sentences that arguably are cruel and unusual. 18 I recognize, of course, that under our system the limits of a prison sentence normally are a matter of legislative prerogative, and trial courts have the primary responsibility to determine an appropriate sentence—within these limits—in light of the facts and circumstances of the particular case. Review of sentencing is not generally a function of appellate review. Yet, our system of justice always has recognized that appellate courts do have a responsibility—expressed in the proportionality principle—not to shut their eyes to grossly disproportionate sentences that are manifestly unjust. I therefore have no criticism of the District Court or the Court of Appeals for exercising this responsibility and reaching the judgments that are reversed here today. 19 There are features of this case that arguably distinguish it from Rummel. I identify these briefly. The first is a letter from the Commonwealth Attorney who successfully prosecuted Davis. The letter is set forth in full below.7 It was solicited by Davis' lawyer, some three years after Davis had commenced to serve his 40-year term. One can say, of course, that such a letter often can be obtained from a prosecutor who may have second thoughts as to the justness of a sentence he had sought at trial. I normally would give little weight to such a letter. But the prosecutor here, in a thoughtful letter, did advance a non-frivolous reason for his conclusion that Davis' sentence was a "gross injustice." He referred to the "grave disparity in sentencing" in comparable drug offenses in the "Commonwealth [of Virginia] and the nation."8 20 The second and more important factor that arguably distinguishes Rummel is the action of the Virginia State Legislature in 1979. It then reduced the maximum penalty for offenses of which Davis was convicted to 10 years on each count regardless of aggravating circumstances. See Va.Code § 18.2-248.1(a)(2) (Supp.1981) and § 18.2-10(e) (1975). This maximum is less than half the sentence Davis received. Because it sets a maximum, the legislative action takes all relevant aggravating circumstances into account. This reduction—five years after Davis' conviction and two years after his prosecutor's letter—evidences Virginia's present sentencing judgment that marihuana possession and distribution in small amounts no longer would justify Davis' sentence.9 Although this change in law was not made retroactive, it is evidence from the most authoritative state source that Davis' sentence was unjust and no longer would be valid. III 21 Based on this evidence of comparative sentencing and the relatively minor degree of Davis' criminality, affirmance of the judgment of the Court of Appeals arguably could be justified. I conclude, however, that Rummel requires reversal. Davis was convicted of distributing marihuana, and had dealt in other drugs as well. He was willing to sell marihuana for use by prison inmates and "probably as well to the wife of an inmate left alone with an infant child." 585 F.2d, at 1233. He previously had been sentenced on a drug-related offense.10 By comparison, Rummel's offenses—three minor frauds involving almost trifling sums of money—were far less serious. Rummel's sentence, moreover, was more severe than Davis'. And Davis has been unable to show—by means of statutory comparisons—that his sentences suffer from a greater degree of disproportionality than Rummel's did. Compare Davis v. Zahradnick, 432 F.Supp. 444, 452-453 (WD Va.1977), with 445 U.S., at 296-302, 100 S.Ct., at 1150-1154. 22 These cases illustrate the seriousness of the disparity in sentencing that may distinguish our system of justice from other mature systems. Sentencing disparity in our country primarily results not from varying statutory limits among the States. Rather, in a nation of our size and with the sentencing decision in particular cases vested—as it should be—in trial courts, a good deal of disparity is inevitable. Effort to minimize this, at least on a state-by-state basis, certainly should be continued. Nor should reform in this respect be addressed only to prevent excessive penalties. The criticism of courts occurs more frequently, often fully justified, when persons guilty of crimes of violence, or serious drug distribution offenses, are given sentences that are disproportionately light in view of their offenses, as well as disparate in comparison with other sentences. Sentencing that is just should take into account the paramount interest of society in being protected from criminal conduct as well as the right of convicted persons to be dealt with fairly according to law. 23 I join the judgment of the Court. 24 Justice BRENNAN, with whom Justice MARSHALL and Justice STEVENS join, dissenting. 25 The increasingly alarming penchant of the Court inappropriately to invoke its power of summary disposition could not be more evident than in this case. With the benefit of neither full briefing nor oral argument, the Court holds that Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), precluded the courts below from holding that respondent has been subjected to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. 26 Rummel considered whether the application of the Texas habitual offender statute to petitioner William Rummel constituted cruel and unusual punishment in violation of the Eighth Amendment. The Texas statute prescribed a mandatory life sentence following a third conviction on a felony charge. Rummel became subject to this provision in 1973, when he was convicted of obtaining $120.75 by false pretenses, then a felony under Texas law. On two earlier occasions, Rummel had been convicted of felonies under Texas law: in 1964 for fraudulently using a credit card to obtain $80 worth of goods or services, and in 1969 for passing a forged check in the amount of $28.36. Rummel argued that the imposition of a mandatory life sentence in his case amounted to cruel and unusual punishment in violation of the Eighth Amendment, as applied to the States through the Fourteenth Amendment, see Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). The Court rejected Rummel's constitutional attack. While noting that "one could argue . . . that for crimes concededly classified and classifiable as felonies, . . . the length of the sentence actually imposed is purely a matter of legislative prerogative," 445 U.S., at 274, 100 S.Ct., at 1139, the Court adopted a much narrower basis for decision, holding that, in the context of Texas' habitual offender statute, the imposition of a life sentence on Rummel served the legitimate state interests of deterring recidivism and of segregating habitual offenders "from the rest of society for an extended period of time." Id., at 284, 100 S.Ct., at 1144. Because this narrower ground was chosen, the Court found it unnecessary to decide whether the Eighth Amendment would have been violated if, in the absence of the habitual offender statute, a life sentence had been imposed on Rummel "merely for obtaining $120.75 by false pretenses." Id., at 276, 100 S.Ct., at 1140. The Court stated in this respect: 27 "[T]he interest of the State of Texas here is not simply that of making criminal the unlawful acquisition of another person's property; it is in addition the interest, expressed in all recidivist statutes, in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law. By conceding the validity of recidivist statutes generally, Rummel himself concedes that the State of Texas, or any other State, has a valid interest in so dealing with that class of persons." Ibid. 28 Relying on Rummel, the per curiam suggests that because the punishment imposed on respondent was within the maximum prescribed by the state legislature, the Court of Appeals, which affirmed the District Court's grant of habeas relief on Eighth Amendment grounds, "sanctioned an intrusion into the basic line-drawing process that is 'properly within the province of legislatures, not courts.' " Ante, at 374, quoting Rummel, supra, at 275-276, 100 S.Ct., at 1139-1140. Even if I viewed Rummel as properly decided, and I do not, the per curiam, by suggesting that it was improper for the courts below to engage in a disproportionality analysis, represents a serious and improper expansion of Rummel. Rummel acknowledged that prior decisions of this Court, see, e.g., Ingraham v. Wright, 430 U.S. 651, 667, 97 S.Ct. 1401, 1410, 51 L.Ed.2d 711 (1977); Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion); Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), recognized that the Eighth Amendment includes a principle of proportionality that requires the invalidation of a sentence that is "grossly disproportionate to the severity of the crime," Rummel, supra, 445 U.S., at 271-272, 100 S.Ct., at 1138. Rummel did not overrule those cases but cited them approvingly.1 Rummel rests on the understanding that, as a consequence of the overwhelming state interests in deterring habitual offenders, the Eighth Amendment does not preclude a State from imposing what might otherwise constitute a disproportionate prison sentence on an individual determined under state law to be a habitual offender. Of course, in the instant case, the Commonwealth of Virginia has expressed no will to punish Davis as a habitual offender, and there has been no determination that he is one. 29 The per curiam nevertheless reverses the judgment below on the basis that "Rummel stands for the proposition that federal courts should be 'reluctan[t] to review legislatively mandated terms of imprisonment' . . . and that 'successful challenges to the proportionality of particular sentences' should be 'exceedingly rare.' " Ante, at 374, quoting Rummel, supra, 274, 272 U.S., at 272, 274, 100 S.Ct., at 1139-1138. But this general principle of deference surely cannot justify the complete abdication of our responsibility to enforce the Eighth Amendment. The question presented here is whether the sentence imposed on respondent in this case comports with the limitation contained in the Eighth Amendment. To reverse on the basis of Rummel, the Court must at least demonstrate why this is not one of those "exceedingly rare" cases in which the Eighth Amendment invalidates a sentence as disproportionate. But the per curiam engages in no such analysis.2 We may be sure, however, that the Court of Appeals, directed to reconsider this case in light of Rummel, did undertake that analysis—upon full review and with the benefit of a substantial record, oral argument, and briefs. 30 It is obvious to me, as it apparently was to at least five judges of the Court of Appeals, that this case is one of those "exceedingly rare" cases in which a sentence should be invalidated on Eighth Amendment grounds. First, the indications are that the punishment imposed on respondent for the possession and distribution of less than nine ounces of marihuana—40 years' imprisonment and fines of $20,000—is not simply harsh, but is in cruel and painful excess of the punishments imposed by the Virginia courts on other defendants convicted of similar offenses. As the District Court noted, 31 "From October 31, 1975 to August, 1976 one hundred and seventeen (117) inmates were committed to the State Department of Corrections for possessing, selling, or manufacturing marijuana. The average sentence for these offenses was three years and two months, the minimum was sixty days, and the maximum was fifteen years." Davis v. Zahradnick, 432 F.Supp. 444, 453 (WD Va.1977). 32 Second, this case is unique in that the very prosecutor who brought the charges against the respondent was forced to concede in light of his experience that the case represents a "grave disparity in sentencing," and that the continued incarceration of Davis "is grossly unjust."3 Finally, by its subsequent action, the Virginia Legislature has implicitly indicated that it views the punishment imposed on the respondent as too severe: in 1979 it reduced from 40 years to 10 years the maximum sentence that can be imposed with respect to each of the two offenses for which the respondent was convicted. See Va.Code § 18.2-248.1(a)(2) (Supp.1981); § 18.2-10(e) (1975). Under the current statute, respondent could, at maximum, be sentenced to 20 years' imprisonment—two consecutive 10-year terms. This legislative reappraisal of criminal punishment for marihuana offenses does not necessarily render unconstitutional respondent's substantially longer term. But it plainly confirms the views of the courts below, which I share, that the punishment inflicted on Davis is unconstitutionally disproportionate and unsupported by any considered legislative judgment that the punishment inflicted is appropriate for the offenses committed.4 See Coker v. Georgia, 433 U.S. 584, 597, 97 S.Ct. 2861, 2868, 53 L.Ed.2d 982 (1977) (plurality opinion) ("[T]he legislative rejection of capital punishment for rape strongly confirms our own judgment, which is that death is indeed a disproportionate penalty for the crime of raping an adult woman"). See also Trop v. Dulles, 356 U.S., at 101, 78 S.Ct., at 598 ("The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."). For these three reasons, and in the absence of full briefing or oral argument, I think that the judgment below—that Davis has indeed been subjected to cruel and unusual punishment—is not an unreasonable one.5 33 Today's decision is profoundly disturbing not only because the Court has misused precedent in order to place its imprimatur on a punishment that the courts below have determined, with ample justification, to be cruel and unusual, but also because it represents yet another instance of this Court's "growing and inexplicable readiness . . . to 'dispose of' cases summarily." Harris v. Rivera, 454 U.S. 339, 349, 102 S.Ct. 460, 466, 70 L.Ed.2d 530 (MARSHALL, J., dissenting). I am, of course, cognizant that, because of an ever-increasing docket, the Court has come under extraordinary pressure to accelerate its disposition process. But I do not believe that summary disposition on the basis of the certiorari papers is a proper response to such pressure6 where, as here, it is employed to change or extend the law in significant respects. Here, the Court reverses the judgment of the Court of Appeals, which had the benefit of our decisions, a concrete record, and a thoughtful District Court opinion. And the Court does so in a context in which the Court of Appeals affirmed by an equally divided court, without opinion; there is accordingly no statement of law below that requires correcting. I can only believe that the Court perceives this case as one in which the narrow Rummel ruling concerning recidivist statutes can be extended to new terrain without the necessary exertion of argument and briefing. Unfortunately, it is Roger Trenton Davis who must now suffer the pains of the Court's insensitivity, and serve out the balance of a 40-year sentence viewed as cruel and unusual by at least six judges below. I dissent from this patent abuse of our judicial power.7 1 In addition to the evidence seized during the raid and the tape recording of the drug transaction, all of which demonstrated that respondent was an active drug dealer, the jury knew from evidence presented at trial that respondent had knowingly sold drugs to be smuggled into prison, had sold drugs to an inmate's wife who was alone with an infant child, and had himself been imprisoned in the past. Davis v. Davis, 585 F.2d, at 1227-1228. 2 Applying the first Hart factor to this case, the District Court found "no element of violence and minimal, debatable danger to the person." Davis v. Zahradnick, 432 F.Supp. 444, 452 (WD Va.1977). In Rummel, however, we noted that "the presence or absence of violence does not always affect the strength of society's interest in deterring a particular crime or in punishing a particular criminal." 445 U.S., at 275, 100 S.Ct., at 1140. Hart § second factor calls for an examination of the purposes behind the criminal statute and the existence of less restrictive means of effectuating those purposes. On this factor the District Court was inconclusive, but noted that the amount of marihuana involved was less than nine ounces, implying that such minimal possession could adequately be deterred with shorter prison sentences. 432 F.Supp., at 452. Such analysis was implicitly rejected by our conclusion in Rummel that the " 'small' amount of money taken" was inapposite, because to acknowledge that the State could have given Rummel a life sentence for stealing some amount of money "is virtually to concede that the lines to be drawn are indeed 'subjective,' and therefore properly within the province of legislatures, not courts." 445 U.S., at 275-276, 100 S.Ct., at 1140. Applying the third Hart factor, the District Court found that respondent's sentence for possession with intent to distribute exceeded the maximum penalty available for that offense in all but four States, and that his sentence for distribution exceeded the maximum penalty available for that offense in all but eight States. 432 F.Supp., at 452-453. We rejected such comparison in Rummel, stating that "[a]bsent a constitutionally imposed uniformity inimical to traditional notions of federalism, some State will always bear the distinction of treating particular offenders more severely than any other State." 445 U.S., at 282, 100 S.Ct., at 1143. Finally, the fourth Hart factor led the District Court to conclude that respondent's sentence was disproportionate when compared to punishments applicable to other offenses under Virginia law. 432 F.Supp., at 453. This comparison was rejected in Rummel because "[o]ther crimes . . . implicate other societal interests, making any such comparison inherently speculative." 445 U.S., at 282, n. 27, 100 S.Ct., at 1143, n. 27. 3 We noted in Rummel that there could be situations in which the proportionality principle would come into play, such as "if a legislature made overtime parking a felony punishable by life imprisonment." Id., at 274, n. 11, 100 S.Ct., at 1139, n. 11. 1 Davis v. Zahradnick, 432 F.Supp. 444, 453 (WD Va.1977). 2 Davis v. Davis, 601 F.2d 153 (CA4 1979). 3 Hutto v. Davis, 445 U.S. 947, 100 S.Ct. 1593, 63 L.Ed.2d 782 (1980). 4 Davis v. Davis, 646 F.2d 123 (CA4 1981). 5 "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." 6 E.g., Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977); Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). 7 The letter from the Commonwealth Attorney to Davis' attorney reads as follows: "This will confirm our recent telephone conversation wherein I advised I would pose no objection to the release of Mr. Davis from the Virginia penal system on a suspended term basis. "Heretofore, I have steadfastly opposed his release. However, the sentences now being imposed throughout the majority of the Commonwealth and the nation for comparable acts of drug distribution are extremely light and in most cases insignificant. In view of such, I think a gross injustice would be done should I not recommend his immediate release with the remainder of his term suspended. "I do wish to make it expressly clear that my recommendation should not be construed as being critical of the jury that convicted Mr. Davis. I actually asked for a heavier sentence than was imposed. The citizens of this county have not softened their views toward drug offenders, and neither have I, but by the same token I cannot condone such grave disparity in sentencing. "I think our community, our jury, and our Court were correct in their approach to the drug problem. However, that we may be correct and others wrong in their assessment, does not enable me to continue to ignore the wrong that would be perpetuated upon Mr. Davis by his continued confinement. My [conscience] dictates that in view of the lack of any semblance of uniformity of sentencing throughout the nation in dealing with the drug problem, that Mr. Davis's continued incarceration is grossly unjust. "I trust that this is a fair summary of the content of our conversation, and if it is not, I hope you will please advise me." Letter of Feb. 28, 1977 (emphasis added). In the District Court, the parties stipulated that, had this prosecutor testified "with respect to the severity of the sentences imposed upon Petitioner for marijuana-related offenses, his testimony would comport with the contents of the attached letter . . . ." Supplemental Stipulation of Fact, Mar. 18, 1977. 8 Davis also prepared a study of drug-related sentencing in Virginia over a 91/2-month period in 1975-1976. This study summarized sentencing of 117 inmates convicted of possessing, selling, or manufacturing marihuana. The average of these sentences was three years, two months. The maximum—for any quantity—was 15 years. I give this study only slight weight because of its short time period and its failure to give information about relevant aggravating circumstances. 9 Rummel also involved a legislative revision of the relevant crimes. The basis for Rummel's life sentence was his conviction as a habitual offender. After conviction for two prior felonies, this habitual offender law provided for automatic imposition of a life sentence upon a third felony conviction. 445 U.S., at 278, 100 S.Ct., at 1141. Rummel's third felony was theft by false pretext. After his conviction on that count and as a habitual offender, Texas reclassified his third offense as a misdemeanor. Id., at 295, 100 S.Ct., at 1150. Unlike Virginia's 1979 amendment with respect to Davis, however, Texas' statutory reduction did not convey any basic change in its attitude toward the statutory basis for Rummel's lengthy sentence: recidivism. 10 "While not given all the details, the jury knew from Eads' testimony that this was not Davis' first trouble with the law in a drug related offense." Davis v. Davis, 585 F.2d 1226, 1228 (CA4 1978). "[T]he trial judge, who could have sentenced concurrently, sentenced consecutively. Not only had he heard the witnesses testify, which we have not; he knew, for example, which the jury did not, that Davis previously had been convicted of selling LSD, and that the two offenses for which Davis had just been found guilty were committed while on bail pending appeal from the previous conviction for selling LSD." Id., at 1233. Cf. Vines v. Muncy, 553 F.2d 342, 349 (CA4 1977) (jury sentence not final under Virginia practice, since its findings are subject to suspension by the trial judge). 1 That there should be any doubt as to the continued validity of the proportionality principle is particularly incomprehensible in view of the Rummel Court's reliance on the proportionality principle in a footnote, where the Court, responding to the fanciful hypothetical of the dissent, stated that this principle would bar a legislature from making "overtime parking a felony punishable by life imprisonment." 445 U.S., at 274, n. 11, 100 S.Ct., at 1139. 2 The per curiam notes that the District Court applied the four-factor proportionality test of Hart v. Coiner, 483 F.2d 136 (CA4 1973). Ante, at 371, 373, and n. 2. It then suggests that the test is inconsistent with the decision in Rummel and that reversal is therefore appropriate here. Even if the Court were correct in its suggestion that the Hart test is inconsistent with Rummel, reversal would not be appropriate, because there is simply no basis for saying that the judgment of the Court of Appeals rests on the Hart test. The Court of Appeals, sitting en banc, affirmed the judgment of the District Court by an equally divided court, and therefore did not issue an opinion. Accordingly, the five judges of the Court of Appeals that voted to affirm the judgment of the District Court may have based their view of the unconstitutionality of Davis' punishment on reasoning entirely unrelated to that offered by the District Court particularly since the District Court's opinion had been issued prior to Rummel. In any event, this Court reviews judgments, not opinions, and therefore the Court can reverse the judgment of the Court of Appeals only if it is not sustainable on any basis. 3 The prosecutor's comments were contained in the following letter that he sent to Davis' attorney: "This will confirm our recent telephone conversation wherein I advised I would pose no objection to the release of Mr. Davis from the Virginia penal system on a suspended term basis. "Heretofore, I have steadfastly opposed his release. However, the sentences now being imposed throughout the majority of the Commonwealth and the nation for comparable acts of drug distribution are extremely light and in most cases insignificant. In view of such, I think a gross injustice would be done should I not recommend his immediate release with the remainder of his term suspended. "I do wish to make it expressly clear that my recommendation should not be construed as being critical of the jury that convicted Mr. Davis. I actually asked for a heavier sentence than was imposed. The citizens of this county have not softened their views toward drug offenders, and neither have I, but by the same token I cannot condone such grave disparity in sentencing. "I think our community, our jury, and our Court were correct in their approach to the drug problem. However, that we may be correct and others wrong in their assessment, does not enable me to continue to ignore the wrong that would be perpetrated upon Mr. Davis by his continued confinement. My conscious [sic] dictates that in view of the lack of any semblance of uniformity of sentencing throughout the nation in dealing with the drug problem, that Mr. Davis's continued incarceration is grossly unjust. "I trust that this is a fair summary of the content of our conversation, and if it is not, I hope you will please advise me." Letter from Thomas B. Baird, Jr., to Edward L. Hogshire (Feb. 28, 1977). 4 This legislative action also undermines any claim that the state interest in having Davis serve a 40-year prison sentence is sufficiently strong to preclude invalidation of the sentence as disproportionate under the Eighth Amendment. See supra, at 381-383. 5 Justice POWELL, concurring in the judgment, nevertheless concludes that the punishment imposed on Davis is not as disproportionate as that imposed on Rummel and that therefore the instant case is controlled by the facts of Rummel. Ante, at 379-380. But even if the punishment in the instant case could be determined, in the abstract, to be less severe than that imposed on Rummel, the fact remains that Rummel was sentenced as a habitual offender and this Court determined the State's interest in imposing unusually harsh sentences on habitual offenders to be a substantial one. No comparable state interest has been offered to support the punishment inflicted here. Although it may be true that the respondent in the instant case has previously been convicted of a drug offense, he was not sentenced as a habitual offender, but for possession and distribution of less than nine ounces of marihuana. Indeed, while the trial judge, who made consecutive the jury's recommended sentences of 20 years on each count, was aware of the respondent's prior conviction, the jury, which awarded the sentences, was unaware that the respondent had previously been convicted. See Davis v. Davis, 585 F.2d 1226, 1233 (CA4 1978). 6 Indeed, an increased rate of summary dispositions may prove to be counterproductive. As the bar becomes alert to the increased probability of summary disposition, lawyers responding to a petition for certiorari will likely choose to minimize the risk of summary disposition by taking the additional step of providing a full statement of their argument on the merits. As others have noted, this will only "mean additional and unnecessary work for the lawyer, expense to the client, and unessential reading matter for the already overburdened Court." R. Stern & E. Gressman, Supreme Court Practice 365 (5th ed. 1978). Accord, Brown, Foreword: Process of Law, 72 Harv.L.Rev. 77, 81-82 (1958). 7 In view of this abuse, it is certainly startling that the Court should suggest that the Court of Appeals' affirmance of the District Court in this case was tantamount to "anarchy." Ante, at 375. Quite to the contrary, the Court of Appeals has only fulfilled its constitutional responsibility to apply the Court's precedents in light of reason and experience—something that this Court today has plainly failed to do.

01

454 U.S. 404 102 S.Ct. 720 70 L.Ed.2d 656 CHARLES D. BONANNO LINEN SERVICE, INC., Petitionerv.NATIONAL LABOR RELATIONS BOARD et al. No. 80-931. Argued Oct. 13, 1981. Decided Jan. 12, 1982. Syllabus. Petitioner linen supply company was a member of an association formed to negotiate collective-bargaining agreements with respondent truckdrivers' union as a multiemployer unit. When the association and union reached an impasse in bargaining for a proposed agreement, the union initiated a selective strike against petitioner, most of the other members of the association locked out their drivers, and petitioner hired permanent replacements for its striking drivers. Thereafter, petitioner notified the association and the union that it was withdrawing from the association, and refused to sign a collective-bargaining agreement later executed by the union and the association. Meanwhile, the union filed the present action, alleging that petitioner's purported withdrawal from the bargaining unit constituted an unfair labor practice. The National Labor Relations Board (Board) affirmed the Administrative Law Judge's finding that no unusual circumstances excused such withdrawal, and ordered petitioner to sign and implement retroactively the agreement concluded between the union and the employers' association, the refusal to sign such agreement constituting an unfair labor practice in violation of §§ 8(a)(5) and (1) of the National Labor Relations Act (NLRA). The Court of Appeals enforced the Board's order. Held : The bargaining impasse did not justify petitioner's unilateral withdrawal from the multiemployer bargaining unit. Pp. 417-419. (a) An impasse is not sufficiently destructive of group bargaining to justify such a withdrawal but is only a temporary deadlock or hiatus in negotiations. Permitting a withdrawal at impasse would as a practical matter undermine the utility of multiemployer bargaining. While no interim or separate agreements were executed in this case, the impasse did not initiate any right to execute an agreement inconsistent with the duty to abide by the results of group bargaining. The balance the Board has struck is not inconsistent with the terms or purposes of the NLRA. Pp. 412-417. (b) Here, the Board has developed a rule which although it may deny an employer a particular economic weapon, does so in the interest of the proper and pre-eminent goal of maintaining the stability of the multiemployer bargaining unit. Pp. 417-419. 630 F.2d 25, affirmed. Sidney A. Coven, Boston, Mass., for petitioner. Norton J. Come, Washington, D. C., for respondent N.L.R.B. James T. Grady, Boston, Mass., for respondents Teamsters Local Union No. 25, et al. Justice WHITE delivered the opinion of the Court. 1 The issue here is whether a bargaining impasse justifies an employer's unilateral withdrawal from a multiemployer bargaining unit. The National Labor Relations Board (Board) concluded that an employer attempting such a withdrawal commits an unfair labor practice in violation of §§ 8(a)(5) and 8(a)(1) of the National Labor Relations Act (Act), 29 U.S.C. §§ 158(a)(5) and 158(a)(1), by refusing to execute the collective-bargaining agreement later executed by the union and the multiemployer association.1 The Court of Appeals for the First Circuit enforced the Board's order. 630 F.2d 25 (1980). Both the Board and the Court of Appeals recognized that several other Courts of Appeals had previously rejected the Board's position on this issue.2 We granted certiorari, 450 U.S. 979, 101 S.Ct. 1512, 67 L.Ed.2d 813 (1981), to resolve the conflict among the Circuits on this important question of federal labor law. We affirm the judgment of the Court of Appeals. 2 * The factual findings of the Administrative Law Judge were affirmed by the Board and are undisputed. Petitioner, Charles D. Bonanno Linen Service, Inc. (Bonanno), is a Massachusetts corporation engaged in laundering, renting, and distributing linens and uniforms. Teamsters Local No. 25 (Union) represents its drivers and helpers as well as those of other linen supply companies in the area. For several years, Bonanno has been a member of the New England Linen Supply Association (Association), a group of 10 employers formed to negotiate with the Union as a multiemployer unit and a signatory of the contracts negotiated between the Union and the Association. On February 19, 1975, Bonanno authorized the Association's negotiating committee to represent it in the anticipated negotiations for a new contract. Bonanno's president became a member of the committee. 3 The Union and the Association held 10 bargaining sessions during March and April. On April 30, the negotiators agreed upon a proposed contract, but four days later the Union members rejected it. By May 15, according to the stipulations of the parties, the Union and the Association had reached an impasse over the method of compensation: the Union demanded that the drivers be paid on commission, while the Association insisted on continuing payment at an hourly rate. 4 Several subsequent meetings failed to break the impasse. On June 23, the Union initiated a selective strike against Bonanno. In response, most of Association members locked out their drivers. Despite sporadic meetings, the stalemate continued throughout the summer. During this period two of the employers met secretly with the Union, presumably in an effort to reach a separate settlement. These meetings, however, never reached the level of negotiations. 5 Bonanno hired permanent replacements for all of its striking drivers. On November 21, it notified the Association by letter that it was "withdrawing from the Association with specific respect to negotiations at this time because of an ongoing impasse with Teamsters Local 25." Pet. for. Cert. 58. Bonanno mailed a copy of its revocation letter to the Union and read the letter over the phone to a Union representative. 6 Soon after Bonanno's putative withdrawal, the Association ended the lockout. It told the Union that it wished to continue multiemployer negotiations. Several negotiating sessions took place between December and April, without Bonanno participating. In the middle of April, the Union abandoned its demand for payment on commission and accepted the Association's offer of a revised hourly wage rate. With this development, the parties quickly agreed on a new contract, dated April 23, 1976, and given retroactive effect to April 18, 1975. 7 Meanwhile, on April 9, 1976, the Union had filed the present action, alleging that Bonanno's purported withdrawal from the bargaining unit constituted an unfair labor practice. In a letter dated April 29, the Union informed Bonanno that because the Union had never consented to the withdrawal, it considered Bonanno to be bound by the settlement just reached. In a reply letter, Bonanno denied that it was bound by the contract. 8 An Administrative Law Judge concluded, after a hearing, that no unusual circumstances excused Bonanno's withdrawal from the multiemployer bargaining unit. The Board affirmed, ordering Bonanno to sign and implement the contract retroactively. In a supplemental decision, the Board explained the basis of its decision that Bonanno's attempt to withdraw from the multiemployer unit was untimely and ineffective. Charles D. Bonanno Linen Service, Inc., 243 N.L.R.B. 1093 (1979). The Court of Appeals enforced the Board's order. 630 F.2d 25 (1980). II 9 The standard for judicial review of the Board's decision in this case was established by NLRB v. Truck Drivers, 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676 (1957) (Buffalo Linen). There, the Union struck a single employer during negotiations with a multiemployer bargaining association. The other employers responded with a lockout. Negotiations continued, and an agreement was reached. The Union, claiming that the lockout violated its rights under §§ 7 and 8 of the Act, then filed charges with the Board. The Board rejected the claim, but the Court of Appeals held that the lockout was an unfair practice. 10 This Court in turn reversed. That the Act did not expressly authorize or deal with multiemployer units or with lockouts in that context was recognized. Nonetheless, multiemployer bargaining had "long antedated the Wagner Act" and had become more common as employers, in the course of complying with their duty to bargain under the Act, "sought through group bargaining to match increased union strength." 353 U.S., at 94-95, 77 S.Ct., at 646-647 (footnote omitted). Furthermore, at the time of the debates on the Taft-Hartley amendments, Congress had rejected a proposal to limit or outlaw multiemployer bargaining. The debates and their results offered "cogent evidence that in many industries multiemployer-bargaining basis was a vital factor in the effectuation of the national policy of promoting labor peace through strengthened collective bargaining." Id., at 95, 77 S.Ct., at 647.3 Congress' refusal to intervene indicated that it intended to leave to the Board's specialized judgment the resolution of conflicts between union and employer rights that were bound to arise in multiemployer bargaining. In such situations, the Court said: 11 "The 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." Id., at 96, 77 S.Ct., at 647. 12 Thus, the Court of Appeals' rejection of the Board's justification of the lockout as an acceptable effort to maintain the integrity of the multiemployer unit and its refusal to accept the lockout as a legitimate response to the whipsaw strike had too narrowly confined the exercise of the Board's discretion. Id., at 97, 77 S.Ct., at 648. 13 Multiemployer bargaining has continued to be the preferred bargaining mechanism in many industries,4 and as Buffalo Linen predicted, it has raised a variety of problems requiring resolution. One critical question concerns the rights of the union and the employers to terminate the multiemployer bargaining arrangement. Until 1958, the Board permitted both employers and the Union to abandon the unit even in the midst of bargaining. Bearing & Rim Supply Co., 107 N.L.R.B. 101, 102-103 (1953); Stamford Wall Paper, 92 N.L.R.B. 1173 (1951); Morand Bros. Beverage Co., 91 N.L.R.B. 409, 413, 416-418 (1950), enf'd in part on other grounds, 190 F.2d 576, 581-582 (CA7 1951). But in Retail Associates, Inc., 120 N.L.R.B. 388 (1958), the Board announced guidelines for withdrawal from multiemployer units. These rules, which reflect an increasing emphasis on the stability of multiemployer units, permit any party to withdraw prior to the date set for negotiation of a new contract or the date on which negotiations actually begin, provided that adequate notice is given. Once negotiations for a new contract have commenced, however, withdrawal is permitted only if there is "mutual consent" or "unusual circumstances" exist. Id., at 395. 14 The Board's approach in Retail Associates has been accepted in the courts,5 as have its decisions that unusual circumstances will be found where an employer is subject to extreme financial pressures or where a bargaining unit has become substantially fragmented.6 But as yet there is no consensus as to whether an impasse in bargaining in a multiemployer unit is an unusual circumstance justifying unilateral withdrawal by the Union or by an employer. After equivocating for a time, the Board squarely held that an impasse is not such an unusual circumstance. Hi-Way Billboards, Inc., 206 N.L.R.B. 22 (1973). The Court of Appeals for the Fifth Circuit refused enforcement of that decision, 500 F.2d 181 (1974), although it has since modified its views and now supports the Board.7 Similar decisions by the Board were also overturned by the Courts of Appeals in three other Circuits. NLRB v. Beck Engraving Co., 522 F.2d 475 (CA3 1975); NLRB v. Independent Ass'n of Steel Fabricators, 582 F.2d 135 (CA2 1978); H. & D., Inc. v. NLRB, 665 F.2d 257, 105 LRRM 3070 (CA9 1980), cert. pending, No. 80-1498. After again considering the question in this case, the Board issued its decision reaffirming its position that an impasse is not an unusual circumstance justifying withdrawal. Its decision was sustained and enforced by the Court of Appeals for the First Circuit. III 15 We agree with the Board and with the Court of Appeals. The Board has recognized the voluntary nature of multiemployer bargaining. It neither forces employers into multiemployer units nor erects barriers to withdrawal prior to bargaining. At the same time, it has sought to further the utility of multiemployer bargaining as an instrument of labor peace by limiting the circumstances under which any party may unilaterally withdraw during negotiations. Thus, it has reiterated the view expressed in Hi-Way Billboards that an impasse is not sufficiently destructive of group bargaining to justify unilateral withdrawal. As a recurring feature in the bargaining process, impasse is only a temporary deadlock or hiatus in negotiations "which in almost all cases is eventually broken, through either a change of mind or the application of economic force." 243 N.L.R.B., at 1093-1094. Furthermore, an impasse may be "brought about intentionally by one or both parties as a device to further, rather than destroy, the bargaining process." Id., at 1094. Hence, "there is little warrant for regarding an impasse as a rupture of the bargaining relation which leaves the parties free to go their own ways." Ibid. As the Board sees it, permitting withdrawal at impasse would as a practical matter undermine the utility of multiemployer bargaining.8 16 Of course, the ground rules for multiemployer bargaining have not come into being overnight. They have evolved and are still evolving, as the Board, employing its expertise in the light of experience, has sought to balance the "conflicting legitimate interests" in pursuit of the "national policy of promoting labor peace through strengthened collective bargaining." Buffalo Linen, 353 U.S., at 95, 96, 77 S.Ct., at 647. The Board might have struck a different balance from the one it has, and it may be that some or all of us would prefer that it had done so. But assessing the significance of impasse and the dynamics of collective bargaining is precisely the kind of judgment that Buffalo Linen ruled should be left to the Board. We cannot say that the Board's current resolution of the issue is arbitrary or contrary to law. 17 If the Board's refusal to accept an impasse, standing alone, as an unusual circumstance warranting withdrawal were the only issue in this case, we would affirm without more. But several Courts of Appeals have rejected Hi-Way Billboards on the grounds that impasse may precipitate a strike against one or all members of the unit and that upon impasse the Board permits the union to execute interim agreements with individual employers. These Courts of Appeals consider the possibility of such events as sufficient grounds for any employer in the unit to withdraw. 18 In Beck Engraving Co., for example, the Court of Appeals for the Third Circuit held that an impasse followed by a selective strike justified unilateral withdrawal from the bargaining unit. Because at that juncture labor relations law, as interpreted by the Board, would permit the union to execute an interim agreement with the struck employer, the Court of Appeals concluded that the union and the employer entering into such an agreement would be given unfair advantage against other employers if the latter were not permitted to withdraw from the unit. The Court of Appeals thought the employer's right to withdraw and the union's privilege of executing interim contracts should mature simultaneously. It concluded that the Board's approach too drastically upset the bargaining equilibrium to be justified in the name of maintaining the stability of the bargaining unit. 19 The Board's reasons for adhering to its Hi-Way Billboards position are telling. They are surely adequate to survive judicial review. First, it is said that strikes and interim agreements often occur in the course of negotiations prior to impasse and that neither tactic is necessarily associated with impasse. Second, it is "vital" to understand that the Board distinguishes "between interim agreements which contemplate adherence to a final unitwide contract and are thus not antithetical to group bargaining and individual agreements which are clearly inconsistent with, and destructive of, group bargaining." 243 N.L.R.B., at 1096. In Sangamo Construction Co., 188 N.L.R.B. 159 (1971), and Plumbers and Steamfitters Union No. 323 (P. H. C. Mechanical Contractors), 191 N.L.R.B. 592 (1971), the agreements arrived at with the struck employers were only temporary: both the union and the employer executing the interim agreement were bound by any settlement resulting from multiemployer bargaining. "[I]n both cases, since the early signers maintained a vested interest in the outcome of final union-association negotiations, the multiemployer unit was neither fragmented nor significantly weakened," 243 N.L.R.B., at 1096, and unilateral withdrawal was not justified. 20 On the other hand, where the union, not content with interim agreements that expire with the execution of a unitwide contract, executes separate agreements that will survive unit negotiations, the union has so "effectively fragmented and destroyed the integrity of the bargaining unit," ibid., as to create an "unusual circumstance" under Retail Associates rules. Cf. Typographic Service Co., 238 N.L.R.B. 1565 (1978). Furthermore, the Board has held that the execution of separate agreements that would permit either the union or the employer to escape the binding effect of an agreement resulting from group bargaining is a refusal to bargain and an unfair labor practice on the part of both the union and any employer executing such an agreement. Teamsters Union Local No. 378 (Olympia Automobile Dealers Assn.), 243 N.L.R.B. 1086 (1979). The remaining members of the unit thus can insist that parties remain subject to unit negotiations in accordance with their original understanding. 21 The Board therefore emphatically rejects the proposition that the negotiation of truly interim, temporary agreements, as distinguished from separate, final contracts, is "inconsistent with the concept of multiemployer bargaining units." 243 N.L.R.B., at 1096. Although interim agreements establish terms and conditions of employment for one or more employer members of the unit pending the outcome of renewed group bargaining, all employers, including those executing interim agreements, have an "equivalent stake" in the final outcome because the "resulting group agreement would then apply to all employers, including each signer of an interim agreement." Ibid. Such interim arrangements "preclude a finding that the early signers had withdrawn from the unit." Ibid. Although the Board concedes that interim agreements exert economic pressure on struck employers, this fact should no more warrant withdrawal than the refusal of one employer to join with others in a lockout.9 In any event, the Board's view is that interim agreements, on balance, tend to deter rather than promote unit fragmentation since they preserve a continuing mutual interest by all employer members in a final associationwide contract. 22 The Board also rests on this Court's admonition that the Board should balance "conflicting legitimate interests" rather than economic weapons and bargaining strength. Its conclusion is that the interest in unit stability, recognized as a major consideration by both Buffalo Linen and NLRB v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965), adequately justifies enforcement of the obligation to bargain despite the execution of a temporary agreement. 23 Of course, no interim or separate agreements were executed in this case. But neither did the impasse initiate any right to execute an agreement inconsistent with the duty to abide by the results of group bargaining. Some Courts of Appeals, taking a different view of the interests involved, question the legitimacy of enforcing the duty to bargain where impasse has occurred and interim agreements have been or may be executed. We think the Board has confined itself within the zone of discretion entrusted to it by Congress. The balance it has struck is not inconsistent with the terms or purposes of the Act, and its decision should therefore be enforced. IV 24 THE CHIEF JUSTICE, in dissent, is quite right that this case turns in major part on the extent to which the courts should defer to the Board's judgment with respect to the critical factors involved. He is also correct in restating the Court's admonition in Brown, supra, 380 U.S., at 291, 85 S.Ct., at 988, that "[r]eviewing courts are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute." But THE CHIEF JUSTICE does not suggest that the Board seeks here to promote illegitimate ends. Both he and the Board strive to further labor peace through effective collective bargaining. Hence, if the Board's assessment of the impact of impasse and interim agreements on those goals is accepted, it is plain that its decision in this case is consistent with its mandate and promotes the underlying congressional purpose. 25 THE CHIEF JUSTICE, candidly accepting that the issue is one of balancing the legitimate interests involved, nonetheless disputes the Board's judgment regarding the underlying factors with respect to what would best serve the statutory goals. He rejects the Board's assessment of the significance of impasse and interim agreements in the multiemployer bargaining context and substitutes his own views. For example, he finds that the impasse in this case "was no 'temporary deadlock or hiatus in negotiations' as the Board claims; this was instead a complete breakdown in negotiations coupled with a prolonged strike and lock-out." Post, at 422.10 He also states, contrary to the Board's judgment, that when the parties have remained at impasse for a long period, "withdrawal of one or a few employers may facilitate rather than frustrate bargaining." Post, at 424. Thus, THE CHIEF JUSTICE avers, it would be "more consistent with [the goals of industrial peace] to permit withdrawal and allow negotiation of separate agreements than to force the parties into escalated economic warfare." Post, at 425. 26 THE CHIEF JUSTICE may be quite right. There is obviously room for differing judgments, however, as the conflicting judgments of the Courts of Appeals and the strong views of the Board on the issues now before us make clear. But the dissenting Justices would have us substitute our judgment for those of the Board with respect to the issues that Congress intended the Board should resolve. This we are unwilling to do. If the courts are to monitor so closely the agency's assessment of the kind of factors involved in this case, the role of the judiciary in administering regulatory statutes will be enormously expanded and its work will become more complex and time consuming. We doubt that this is what Congress intended in subjecting the Board to judicial review. Indeed, we so held in Buffalo Linen. 27 We agree that the National Labor Relations Act does not constitute the Board as an "arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands," NLRB v. Insurance Agents, 361 U.S. 477, 497, 80 S.Ct. 419, 431, 4 L.Ed.2d 454 (1960), or give "the Board a general authority to assess the relative economic power of the adversaries in the bargaining process and to deny weapons to one party or the other because of its assessment of that party's bargaining power," American Ship Building Co. v. NLRB, 380 U.S. 300, 317, 85 S.Ct. 955, 966, 13 L.Ed.2d 855 (1965). But the Board has refused to enter that proscribed area, despite the urging of several Courts of Appeals. Instead, it looked at its statutory mandate and duty—to promote labor peace through strengthened collective bargaining—in developing its rule. 28 In Brown itself the Court disagreed with the Board and held that no unfair labor practice occurred when members of a multiemployer unit hired temporary replacements following a lockout. Maintaining the stability of the multiemployer unit was the key to that decision: the Court reasoned that without temporary replacements "the prospect that the whipsaw strike would succeed in breaking up the employer association was not at all fanciful." Brown, 380 U.S., at 284, 85 S.Ct., at 984. In contrast to its action in Brown, the Board in this case has developed a rule which, although it may deny an employer a particular economic weapon, does so in the interest of the proper and pre-eminent goal, maintaining the stability of the multiemployer unit. Because the Board has carefully considered the effect of its rule on that goal, we should defer to its judgment. 29 Affirmed. 30 Justice STEVENS, concurring. 31 The Court's holding today does not impair an employer's freedom to structure the manner in which it will conduct collective bargaining. Its opinion, which I join, recognizes the voluntary nature of multiemployer bargaining, see ante, at 412, and notes that the Board "neither forces employers into multiemployer units nor erects barriers to withdrawal prior to bargaining." Ibid. 32 The mere fact that an employer bargains in conjunction with other employers does not necessarily mean that it must sign any contract that is negotiated by the group. The Board requires that, to be bound by the terms of group negotiation, the members of an employer association must "have indicated from the outset an unequivocal intention to be bound in collective bargaining by group rather than individual action," and the union representing their employees must "[have] been notified of the formation of the group and the delegation of bargaining authority to it, and [have] assented and entered upon negotiations with the group's representative." Weyerhaeuser Co., 166 N.L.R.B. 299, 299 (1967), enf'd, 130 U.S.App.D.C. 176, 398 F.2d 770 (1968). This test is well established in the Courts of Appeals. See, e.g., NLRB v. Beckham, Inc., 564 F.2d 190, 192 (CA5 1977); Komatz Construction, Inc. v. NLRB, 458 F.2d 317, 321 (CA8 1972); NLRB v. Hart, 453 F.2d 215, 217 (CA9 1971), cert. denied, 409 U.S. 844, 93 S.Ct. 46, 34 L.Ed.2d 84 (1972); NLRB v. Dover Tavern Owners' Assn., 412 F.2d 725, 727 (CA3 1969). Absent such an unequivocal commitment to be bound by group action, an employer is free to withdraw from group negotiation at any time, or simply to reject the terms of the final group contract. See Komatz Construction, supra; Ruan Transport Corp., 234 N.L.R.B. 241 (1978). In the instant case, petitioner has never questioned the unequivocal character of its commitment to participate in and to be bound by the results of group negotiation. 33 The Court's holding does not preclude an employer from explicitly conditioning its participation in group bargaining on any special terms of its own design. Presumably, an employer could refuse to participate in multiemployer bargaining unless the union accepted the employer's right to withdraw from the bargaining unit should an impasse develop. The union or the other members of the bargaining unit of course may reject such a condition; in such a case, however, the employer simply would be forced to choose between agreeing to be bound by the terms of group negotiation without a right of withdrawal at impasse, or forgoing the advantages of multiemployer bargaining and bargaining on its own. 34 Chief Justice BURGER, with whom Justice REHNQUIST joins, dissenting. 35 The Court today affirms the National Labor Relations Board's finding that withdrawal of an employer from a multiemployer bargaining unit, after a long drawn-out and unproductive bargaining impasse, constitutes an unfair labor practice by the employer in violation of §§ 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (5). In addition, the Court indicates that withdrawal is not permissible even after the union has negotiated separate agreements with other members of the bargaining unit.1 The Court bases its holding in large part on deference to the views of the Board. Although judicial review of the Board's balancing of conflicting interests is limited, "the balance struck by the Board is [not] immune from judicial examination and reversal in proper cases." NLRB v. Brown, 380 U.S. 278, 290-291, 85 S.Ct. 980, 987-988, 13 L.Ed.2d 839 (1965). When the Board's decisions create an artificial and unwarranted imbalance of economic weapons, the courts are not bound to show abject deference to the Board's views. Today the Court perpetuates an unsupportable imbalance and in so doing damages the very multiemployer bargaining mechanism it seeks to protect—a mechanism of great value to both unions and employers.2 36 * The Court holds that the occurrence of an impasse, without more, does not automatically trigger a right of an employer to withdraw from a multiemployer bargaining unit. If the Court went no further, my objections would be minimal. In this case, however, there was much more than a mere impasse. At the time of the petitioner's withdrawal from the bargaining unit, the negotiations had been stalemated for more than six months, a selective strike and unit-wide lockout had kept employees away from their jobs for five months, and there were no signs that the parties would return to the bargaining table. This was no "temporary deadlock or hiatus in negotiations" as the Board claims; this was instead a complete breakdown in negotiations coupled with a prolonged strike and lockout.3 Nevertheless, the Court holds that employers in the multiemployer group could not withdraw. 37 The Court then goes on, stating that even when the union negotiates separate "interim" agreements with individual employers the remaining employers cannot withdraw from the bargaining group. Thus, with all of the members of a multiemployer group closed down or crippled by a strike or a lockout, the union is permitted to "divide and conquer" by coming to terms with some of the employers, allowing them to resume operations with a full staff. With one or more competitors fully back in business, the ability of the remaining employers to resist the union demands becomes greatly—and unfairly—diminished. Unable to withdraw, the remaining employers have no defense; they are forced either to submit to the union's demands or to allow fellow members of the group to profit from the strike or lockout. The effect of today's decision is "to deny self-help by employers when legitimate interests of employees and employers collide." NLRB v. Truck Drivers, 353 U.S. 87, 96, 77 S.Ct. 643, 647, 1 L.Ed.2d 676 (1957) (Buffalo Linen). 38 The Board has purported to follow an evenhanded approach to multiemployer bargaining. The Evening News Assn., 154 N.L.R.B. 1494 (1965), enf'd sub nom. Detroit Newspaper Publishers Assn. v. NLRB, 372 F.2d 569 (CA6 1967). By allowing the union to negotiate interim agreements in order to whipsaw the employer group and yet denying the employers the necessary defense of withdrawal, the Board is hardly living up to its asserted—and mandated—commitment to evenhandedness. II 39 Maintenance of industrial peace requires balancing the interests of labor with those of management; the Court holds that the "difficult responsibility" of striking this balance lies with the Board subject only to "limited judicial review." But judicial review, although limited, is not absent: 40 "[T]he phrase 'limited judicial review' [does] not mean that the balance struck by the Board is immune from judicial examination and reversal in proper cases. . . . [W]here, as here, the review is not of a question of fact, but of a judgment as to the proper balance to be struck between conflicting interests, '[t]he deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.' " NLRB v. Brown, supra, at 290-292, 85 S.Ct., at 987-988, quoting American Ship Building Co. v. NLRB, 380 U.S. 300, 318, 85 S.Ct. 955, 967, 13 L.Ed.2d 855 (1965). 41 The Court's deferral to the Board's conclusion that its rules advance the national labor policy by enhancing stability and promoting collective bargaining represents just the kind of uncritical judicial rubberstamping we have often condemned. NLRB v. Brown, supra, 380 U.S., at 291, 85 S.Ct., at 988. 42 Contrary to the Board's conclusory statements, accepted by the Court, employers who execute interim agreements do not have an equivalent stake in promptly securing a reasonable final agreement. Such employers are able to operate fully while their competitors are hampered by a strike or defensive lockout; employers covered by interim agreements have a natural economic interest in prolonging the deadlock, thereby increasing their competitive advantage over the employers who remain in the multiemployer group. 43 The Court also accepts the Board's naked assertion that "interim agreements . . . deter rather than promote unit fragmentation." It is difficult to imagine an event more likely to fragment a multiemployer group than a union's successful whipsawing. Certainly employers will be reluctant to continue their association with other employers who are now encouraged by the Board—and by this Court—selfishly to permit themselves to be used to force the group to yield to the union demands.4 44 Even without the negotiation of interim agreements, when the parties have remained at impasse for a lengthy period, withdrawal of one or a few employers may facilitate rather than frustrate bargaining. The present case is illustrative. Bargaining between the Teamsters and the association was at a stalemate when Bonanno Linen decided to withdraw. That withdrawal did not cause the immediate "disintegration" of the bargaining unit, but instead provided the impetus for the union and the remaining employers ultimately to return to the bargaining table and reach agreement. Thus, Bonanno Linen's withdrawal can be seen as fostering the group collective-bargaining process rather than hindering it. In any event, an employer's withdrawal from the multiemployer group is no more disruptive of the bargaining process than a union's decision to use "divide and conquer" tactics. 45 Industrial peace, it must be remembered, is the primary objective of the federal labor laws; multiemployer bargaining is simply one of many tools used to try to achieve that goal for the benefit of both sides. When a union and a group of employers have reached an impasse and further negotiations would appear to be an exercise in futility, it is more consistent with that goal to permit withdrawal and allow negotiation of separate agreements than to force the parties into escalated economic warfare. Because of differing concerns, it is likely that employers will be able to negotiate agreements individually even though efforts to reach a group agreement failed. By instead forcing the parties to use their economic weapons, the Board's rule runs counter to the congressional goal of industrial peace. III 46 In addition to arguing that its rule barring withdrawal upon impasse enhances the stability of multiemployer groups and promotes collective bargaining, the Board contends that an impasse is neither sufficiently unusual nor adequately determinable to support withdrawal. "Impasse" is a term of art in labor law; the presence of an impasse triggers other important consequences. At impasse, for example, either party may decline to negotiate further. See, e.g., NLRB v. Webb Furniture Corp., 366 F.2d 314, 315 (CA4 1966). In addition, at impasse an employer may unilaterally make changes in terms and conditions of employment provided that the changes are consistent with the proposals it made at the bargaining table. See, e.g., NLRB v. Tex-Tan, Inc., 318 F.2d 472 (CA5 1963); Taft Broadcasting Co., 163 N.L.R.B. 475 (1967), enf'd sub nom. American Federation of Television and Radio Artists v. NLRB, 129 U.S.App.D.C. 399, 395 F.2d 622 (1968). 47 Because unions and employers have important rights which arise upon impasse, the Board and the courts have acquired considerable experience in determining whether an impasse exists. See, e.g., NLRB v. Tex-Tan, Inc., supra; Taft Broadcasting Co., supra. It makes little sense to say, as the Board does here, that on the one hand an impasse is too common and indeterminable to permit withdrawal from a multiemployer bargaining unit while on the other hand maintaining that an impasse is sufficiently momentous and ascertainable to allow employers to stop bargaining and make unilateral changes. Moreover, if the Board, after nearly 40 years of dealing with the concept, finds impasse too ill-defined to permit withdrawal, it is high time that the Board exercise its presumed expertise and establish more definite guidelines to identify impasse. Unions and employers are entitled to that guidance. 48 The Court also accepts the Board's contention that "impasse may be 'brought about intentionally by one of the parties,' " and asserts that "permitting withdrawal at impasse would as a practical matter undermine the utility of multiemployer bargaining." The Court explains that permitting withdrawal upon impasse would allow employers to "precipitate an impasse in order to escape any agreement less favorable than the one expected." This argument ignores a basic element of impasse: impasse is reached only when a stalemate—a breakdown in bargaining—occurs after good-faith negotiations. NLRB v. Crompton-Highland Mills, Inc., 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320 (1949); Cone Mills Corp. v. NLRB, 413 F.2d 445, 450 (CA4 1969). Intentionally refusing to agree in order to create an impasse and thus facilitate withdrawal—or trigger any of the other rights available upon impasse—is hardly good-faith bargaining. Industrial Union of Marine and Shipbuilding Workers v. NLRB, 320 F.2d 615 (CA3 1963), cert. denied sub nom. Bethlehem Steel Co. v. NLRB, 375 U.S. 984, 84 S.Ct. 516, 11 L.Ed.2d 472 (1964); NLRB v. Herman Sausage Co., 275 F.2d 229 (CA5 1960). The Board has ample means to deal with feigned bargaining. IV 49 I would have little difficulty with a rule that a brief cessation of bargaining, without more, does not trigger a right to withdraw from a multiemployer bargaining unit. But the Board has gone much further. No impasse, we are told, no matter how long it lasts or how far apart the parties remain, permits withdrawal. Employers may not withdraw even after the union has negotiated separate agreements with some of the employers in order to force the others in the group into compliance. Absent a more reasonable alternative than that offered by the Board, I would adopt the rule of the Second, Third, and Ninth Circuits and permit withdrawal upon impasse.5 50 Justice O'CONNOR, with whom Justice POWELL joins, dissenting. 51 I join THE CHIEF JUSTICE in the introductory comments and Part I of his dissent. However, I write separately because I believe labor peace would be advanced by avoiding the absolute positions adopted both by the majority and by the dissent of THE CHIEF JUSTICE. Because I am convinced that the Board should examine the circumstances surrounding and following an impasse to determine whether an unusual circumstance sufficient to justify withdrawal has occurred, and because I cannot accept the Court's conclusory statements concerning the effects of all interim agreements, I respectfully dissent. 52 * The Court agrees with the Board that an impasse is not an unusual circumstance "sufficiently destructive of group bargaining to justify unilateral withdrawal." The Board adopted that position after identifying an impasse as (1) simply a "temporary deadlock or hiatus in negotiations" (2) which may be brought about intentionally by one of the parties and (3) which in almost all cases is "eventually broken, either through a change of mind or the application of economic force." Charles D. Bonanno Linen Service, Inc., 243 N.L.R.B. 1093, 1093-1094 (1979). There are, of course, impasses that fit this description. Others do not. Unfortunately, having developed its premise, the Board has chosen to ignore the reasons which justified it and now "reasons" that an impasse, regardless of duration, does not justify employer withdrawal. The problem with the Board's approach is that it reasons by definition. That is, while an impasse may be a temporary deadlock, a deadlock cannot be made temporary simply by calling it an impasse. Thus, while the rule may be efficient, it does not contribute to principled decisionmaking. This case provides an excellent example of the result which obtains when the Board applies a general rule without analysis of the particular factual situation. 53 More than a temporary lull in negotiations developed here. When Bonanno withdrew from the bargaining unit in November, the parties had been deadlocked for more than six months. Nevertheless, although the Board defines an impasse as a "temporary" deadlock, it inexplicably views the passage of time as irrelevant to the question of whether something more than a "hiatus" in negotiations was involved.1 54 Closely related to the Board's view of an impasse as temporary is its view that an impasse is not an unusual circumstance because it is broken in almost all cases either through a change of mind or by the application of economic forces. However, in this case the Board did not determine whether, when Bonanno withdrew, the parties were likely to have broken the impasse. The union and association had unsuccessfully utilized the most common economic weapons: the union had called a selective strike; association members had locked out their drivers; and Bonanno had hired replacement drivers.2 The Board made no finding that the arsenal of this union or these employers contained additional economic weapons which, if used, might have ended the impasse. 55 Moreover, neither the Board nor any party to the negotiations suggested that Bonanno precipitated the May 15 impasse as a means to excuse its withdrawal from the association. The Board's third identifying feature of an impasse is thus also missing from this situation. 56 The impasse which all parties agree existed on May 15 may fit the Board's definition of impasse; the situation which existed on November 21 does not. The point is not that this Court should substitute its judgment as to the "significance of impasse and the dynamics of collective bargaining" for that of the Board. The point is that the Board should be required to analyze, not simply label, a deadlock in negotiations. If the Board had utilized its expertise to examine the facts of this case, it well might have found a complete breakdown in negotiations, not a temporary impasse. When such a complete breakdown occurs, I would afford an employer a right to withdraw. II 57 Neither can I agree with the Court's conclusion that employers who execute interim agreements invariably maintain an equivalent stake in securing a final agreement and that interim agreements always deter fragmentation of the employer unit. That conclusion, like the "impasse rule" adopted today, sweeps too broadly. The conclusion is least likely to be accurate when applied to a highly competitive industry which relies upon skilled workers and counts heavily upon repetitive patronage. If one member of a struck employer association in such an industry reaches an interim agreement, he will gain a competitive advantage sufficient to produce a natural and powerful interest in prolonging the deadlock. In fact, the Board has found that an employer with such an advantage is less likely to push for prompt settlement of the labor dispute. See, e.g., Connell Typesetting Co., 212 N.L.R.B. 918 (1974). Moreover, as we recognized in NLRB v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965), the notion that allowing a practice which unfairly advantages one employer would "succeed in breaking up the employer association was not at all fanciful." Id., at 284, 85 S.Ct., at 984. Likewise, when an interim agreement affords one employer a competitive advantage, the notion that allowing the agreement will promote fragmentation of the bargaining unit is not at all fanciful. 58 Other factors could also affect the impact of an interim agreement. For instance, an agreement between a union and the employer of 40 percent of a work force could shatter a bargaining unit. Such an agreement with an employer of two percent of the work force might have little effect. No magic inheres in the word "interim," as none inheres in "impasse." Identification of an agreement as "interim" rather than "final" is the beginning, not the end, of the required analysis of the agreement's effect on the bargaining unit. Yet, today the Court gives blanket approval of any interim agreement.3 Here too, I would require the Board to apply its expertise to determine the effect of such an agreement in a particular instance rather than approve the Board's practice of decision by label. If an agreement, interim or final, operates to fragment a bargaining unit, I would allow withdrawal by an employer. III 59 The goal of multiemployer bargaining is to promote "labor peace through strengthened collective bargaining." NLRB v. Truck Drivers, 353 U.S. 87, 95, 77 S.Ct. 643, 647, 1 L.Ed.2d 676 (1957). Neither a complete breakdown in negotiations nor a fragmented bargaining unit furthers that goal. Because today's decision allows both, I dissent. 1 Section 8(d) of the Act, 61 Stat. 142, 29 U.S.C. § 158(d), states, in relevant part: "[T]o bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, . . . and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession. . . ." Section 8(a)(5) of the Act, 61 Stat. 141, 29 U.S.C. § 158(a)(5), declares it an unfair labor practice for an employer to "refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a)." Section 8(b)(3), 61 Stat. 141, 29 U.S.C. § 158(b)(3), declares it an unfair labor practice for a labor organization "to refuse to bargain collectively with an employer, provided it is the representative of his employees subject to the provisions of section 9(a)." Section 9(a), 61 Stat. 143, 29 U.S.C. § 159(a), in turn, specifies that "[r]epresentatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining. . . ." Finally under § 2(2), 61 Stat. 137, 29 U.S.C. § 152(2), the term "employer" includes "any person acting as an agent of an employer, directly or indirectly," and the term "person" is defined in § 2(1), 61 Stat. 137, 29 U.S.C. § 152(1), to include "associations." 2 See NLRB v. Independent Assn. of Steel Fabricators, Inc., 582 F.2d 135 (CA2 1978), cert. denied, 439 U.S. 1130, 99 S.Ct. 1049, 59 L.Ed.2d 91 (1979); NLRB v. Beck Engraving Co., Inc., 522 F.2d 475 (CA3 1975); NLRB v. Associated Shower Door Co., Inc., 512 F.2d 230 (CA9), cert. denied, 423 U.S. 893, 96 S.Ct. 191, 46 L.Ed.2d 125 (1975); NLRB v. Hi-Way Billboards, Inc., 500 F.2d 181 (CA5 1974); Fairmont Foods Co. v. NLRB, 471 F.2d 1170 (CA8 1972). 3 As the Court of Appeals explained in this case: "Multiemployer bargaining offers advantages to both management and labor. It enables smaller employers to bargain 'on an equal basis with a large union' and avoid 'the competitive disadvantages resulting from nonuniform contractual terms.' NLRB v. Truck Drivers Local 449, 353 U.S. 87, 96, 77 S.Ct. 643, 647, 1 L.Ed.2d 676 . . . (1957). At the same time, it facilitates the development of industry-wide, worker benefit programs that employers otherwise might be unable to provide. More generally, multiemployer bargaining encourages both sides to adopt a flexible attitude during negotiations; as the Board explains, employers can make concessions 'without fear that other employers will refuse to make similar concessions to achieve a competitive advantage,' and a union can act similarly 'without fear that the employees will be dissatisfied at not receiving the same benefits which the union might win from other employers.' Brief, at 10. Finally, by permitting the union and employers to concentrate their bargaining resources on the negotiation of a single contract, multiemployer bargaining enhances the efficiency and effectiveness of the collective bargaining process and thereby reduces industrial strife." 630 F.2d, at 28. 4 A recent survey of major collective-bargaining agreements (those covering 1,000 or more employees) found that of 1,536 major agreements, 648 (42%) were multiemployer agreements and that 3,238,400 employees were covered by these agreements. U.S. Bureau of Labor Statistics, Dept. of Labor, Bull. No. 2065, Characteristics of Major Collective Bargaining Agreements—January 1, 1978, p. 12, table 1.8 (1980). 5 See, e.g., NLRB v. Custom Wood Specialties, Inc., 622 F.2d 381 (CA8 1980); Carvel Co. v. NLRB, 560 F.2d 1030 (CA1 1977), cert. denied, 434 U.S. 1065, 98 S.Ct. 1240, 55 L.Ed.2d 766 (1978); NLRB v. Central Plumbing Co., 492 F.2d 1252 (CA6 1974); NLRB v. Brotherhood of Teamsters, Local No. 70, 470 F.2d 509 (CA9 1972), cert. denied, 414 U.S. 821, 94 S.Ct. 117, 38 L.Ed.2d 54 (1973); NLRB v. Johnson Sheet Metal, Inc., 442 F.2d 1056 (CA10 1971); NLRB v. Dover Tavern Owners' Assn., 412 F.2d 725 (CA3 1969); NLRB v. John J. Corbett Press, Inc., 401 F.2d 673 (CA2 1968). 6 See, e.g., NLRB v. Southwestern Colorado Contractors Assn., 447 F.2d 968 (CA10 1971); NLRB v. Spun-Jee Corp., 385 F.2d 379 (CA2 1967); Connell Typesetting Co., 212 N.L.R.B. 918 (1974); Atlas Electrical Service Co., 176 N.L.R.B. 827 (1969); U. S. Lingerie Corp., 170 N.L.R.B. 750 (1968). 7 In NLRB v. Marine Machine Works, Inc., 635 F.2d 522 (CA5 1981), it was concluded that the Board's policy wisely and properly weighed the competing policy concerns. 8 The Board explains that if withdrawal were permitted at impasse, the parties would bargain under the threat of withdrawal by any party who was not completely satisfied with the results of the negotiations. That is, parties could precipitate an impasse in order to escape any agreement less favorable than the one expected. In addition, it is precisely at and during impasse, when bargaining is temporarily replaced by economic warfare, that the need for a stable, predictable bargaining unit becomes acute in order that the parties can weigh the costs and possible benefits of their conduct. Brief for Respondent NLRB 24-25. 9 The Board adopts the language of the First Circuit below: "the uneven application of economic pressure per se is not inconsistent with multiemployer bargaining." 630 F.2d, at 33. In addition, it points out that the employer also has additional weapons at its disposal for exerting economic pressure. It can engage in a lockout, make unilateral changes in working conditions if they are consistent with the offers the union has rejected, hire replacements to counter the loss of striking employees, and try to blunt the effectiveness of an anticipated strike by stockpiling inventories, readjusting contract schedules, or transferring work from one plant to another. The Board further notes that interim agreements do not always have the effect the Union desires. The signing of an interim agreement may not weaken the association's determination to resist the union's demands, see Plumbers & Steamfitters Union No. 323 (P. H. C. Mechanical Contractors), 191 N.L.R.B. 592 (1971), and the eventual contract settlement may have terms more favorable to the employers than the interim agreements, requiring the union to give up its temporary gains, see Associated Shower Door Co., 205 N.L.R.B. 677 (1973), enf'd on other grounds, 512 F.2d 230 (CA9), cert. denied, 423 U.S. 893, 92 S.Ct. 191, 46 L.Ed.2d 125 (1975). Brief for Respondent NLRB 33, nn. 48 and 49. 10 The dissent here ignores Buffalo Linen's recognition of whipsawing as a legitimate weapon of economic persuasion in the course of collective bargaining. See Buffalo Linen, 353 U.S., at 90, n. 7, 77 S.Ct., at 644, n. 7. 1 "Whipsawing" describes any one of several tactics by which a union creates a situation in which some but not all employers in a multiemployer group are closed or hampered by a strike or lockout. A union may call a strike against one or a few of the employers or, in the face of a lockout, it may negotiate a separate agreement with one or a few employers. Some of the employers are thus unable to conduct business as usual while others are fully operational. The theory behind whipsawing is that the impaired employers, seeing their competitors enjoying a market advantage and fearing that those competitors will increase their market share at the expense of the impaired employer, will be under irresistible pressure to yield to the union's demands. 2 The multiemployer mode of bargaining, traditionally seen as a defensive reaction by small employers, has become perhaps as important for unions as for employers. As counsel for the union in this case stated during oral argument, the limited funds and personnel of unions often make it very difficult for a union to negotiate separate agreements with each employer in industries where employer units are small. 3 As the Board conceded during oral argument, its rule, now endorsed by this Court, prohibits withdrawal even if an impasse and a strike or lockout lasts as long as two years. 4 The Court places great reliance on the notion that the union is only allowed to negotiate interim agreements with individual employers and that negotiation of permanent separate agreements not tied to the final association agreement would permit the remaining employers to withdraw from the unit. This reliance may be misplaced. In Tobey Fine Papers of Kansas City, 245 N.L.R.B. 1393 (1979), enf'd, 659 F.2d 841, 107 LRRM 2221 (CA8 1981), the Board did not permit an employer to withdraw from a multiemployer group even though 2 of the 14 members (representing 42% of the group's employees) had withdrawn with union consent and negotiated separate, permanent agreements. The Board held that "it does not follow ipso facto that execution of individual separate final contracts with [withdrawn] Association members either proves an intention to destroy, or necessarily causes the fragmentation of, a multiemployer unit." 245 N.L.R.B., at 1395. 5 NLRB v. Independent Assn. of Steel Fabricators, 582 F.2d 135 (CA2 1978), cert. denied sub nom. Shopmen v. NLRB, 439 U.S. 1130, 99 S.Ct. 1049, 59 L.Ed.2d 91 (1979); NLRB v. Beck Engraving Co., 522 F.2d 475 (CA3 1975); NLRB v. Associated Shower Door Co., 512 F.2d 230 (CA9), cert. denied, 423 U.S. 893, 96 S.Ct. 191, 46 L.Ed.2d 125 (1975). 1 As THE CHIEF JUSTICE notes in his dissent, the Board conceded during oral argument that it will not regard an impasse as an unusual circumstance even if it continues for two years. 2 The parties submitted this dispute on stipulated facts which do not indicate whether other association members hired temporary workers after the strike and lockout, a step which they had the right to take. NLRB v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965). 3 By adopting a per se rule that interim agreements never fragment the bargaining unit, the Court takes a position more extreme than that urged by the Board. At least until today, the Board has allowed employer withdrawal when interim agreements resulted in unit fragmentation. See, e.g., Typographic Service Co., 238 N.L.R.B. 1565 (1978); Connell Typesetting Co., 212 N.L.R.B. 918 (1974). Approval of a rule so favorable to one party to negotiations is hardly the way to encourage multiemployer bargaining or industrial peace.

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454 U.S. 393 102 S.Ct. 715 70 L.Ed.2d 576 Larry BLANDING, et al., Appellants,v.E. M. DuBOSE, et al. No. 81-325. Jan. 11, 1982. PER CURIAM. 1 Appellants, citizens of Sumter County, S.C., have taken an appeal from a summary judgment entered against them on February 17, 1981, by the United States District Court for the District of South Carolina. The three-judge District Court concluded that Sumter County in June 1979 had made a preclearance submission under § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U.S.C. § 1973c, when it wrote the United States Attorney General informing him that a referendum had approved at-large County Council elections. Because the Attorney General failed to object within 60 days to the claimed preclearance submission, the District Court permitted Sumter County to proceed with at-large elections for its County Council. We hold that the county's June 1979 letter was a reconsideration request, not a preclearance submission, and reverse. 2 * Section 5 of the Voting Rights Act1 provides that when a covered political subdivision enacts a voting procedure different from that in effect on November 1, 1964, the political subdivision must either seek a declaratory judgment in the United States District Court for the District of Columbia approving the procedure or submit it to the United States Attorney General for preclearance. If the procedure is submitted to the Attorney General and he does not interpose an objection to the preclearance submission within 60 days, the procedure may be enforced. 3 On November 1, 1964, Sumter County was governed by its South Carolina General Assembly delegation acting through a County Board of Supervisors. In 1967, the General Assembly enacted a local bill that established a new form of government for Sumter County, namely, a seven-member County Commission elected at large. See 1967 S.C.Acts, No. 371. Although this change required preclearance under § 5 of the Voting Rights Act, no steps were taken to obtain preclearance and at-large elections were held in 1968, 1970, 1972, and 1974. 4 In 1975, the General Assembly passed, and the Governor approved, the State's Home Rule Act, 1975 S.C.Acts, No. 283, codified as S.C.Code § 4-9-10 et seq. (1976 and Supp.1980). The Act permitted a South Carolina county to hold a referendum to select a form of local government and to choose between at-large and single-member district elections. § 4-9-10. The Act specifically provided that if Sumter County did not hold a referendum, it would be assigned, effective July 1, 1976, the council-administrator form of government with council members elected at-large. § 4-9-10(b). 5 The Home Rule Act was submitted to the Attorney General of the United States for preclearance. The Attorney General2 did not interpose an objection to the Act, as such, but he indicated that the outcomes of Home Rule Act referenda or assignments of forms of government under the Act would be subject to preclearance. 6 Sumter County chose not to hold a referendum. Accordingly, it was assigned the council-administrator form of government with at-large elections. The County Council passed a resolution and ordinance adopting that form of government and method of election. 7 On August 13, 1976, the County Administrator submitted the Sumter County Home Rule Ordinance and the 1967 Act to the Attorney General for preclearance. On December 3, after having obtained necessary additional information, see 28 CFR § 51.18 (1980), the Attorney General made a timely objection to the at-large method of election of the Council. He interposed no objection to the council-administrator form of government. 8 The county requested the Attorney General to reconsider his objection to at-large elections, see § 51.21(b), and the county and the Attorney General continued to correspond during 1977 and 1978. In early 1978, the county asked whether the Attorney General would withdraw his objection if a county referendum endorsed the at-large method of election. On April 28 of that year, the Attorney General declined to withdraw the objection and advised the county that a favorable referendum result, by itself, would not cause him to change his mind. 9 A Council election was scheduled for June 13, 1978. After the Attorney General refused to withdraw his objection, private parties and the United States brought separate federal suits to prevent elections under the at-large system. The two suits were consolidated. A single judge issued a temporary restraining order, and on June 21, 1978, a three-judge District Court permanently enjoined County Council elections until the requirements of the Voting Rights Act were fulfilled. 10 In November 1978, Sumter County went ahead with its referendum in which voters were asked whether they preferred that Council members be elected at-large or from single-member districts. The majority endorsed the at-large method. Because Council members already were being elected under the at-large system, the county did not enact any resolution or ordinance to adopt the results of the referendum. 11 Then came the critical exchange of correspondence. On June 4, 1979, the Attorney General received a letter, dated June 1, from the county advising him of the referendum results. The letter expressed doubt as to whether it was a new preclearance submission of the at-large method, see 28 CFR § 51.2(c) (1980), or a request that the Attorney General reconsider his earlier objection to at-large elections, see § 51.21.3 Subsequently, on July 23, a conference was held in Washington, D. C., between county officials and representatives of the Department of Justice. See § 51.23. Fifteen days later, see § 51.24,4 on August 7, the Attorney General, referring to the county's letter as a "request for reconsideration," refused to withdraw the objection to at-large elections, but advised the county that the Department of Justice had not yet completed its review. On September 27, the Attorney General for a second time refused to withdraw his objection. See § 51.25.5 12 Thereafter, the defendant-appellees moved the District Court for summary judgment. They contended that the June letter was a preclearance submission, not a request for reconsideration. Section 5, the appellees noted, requires the Attorney General to object within 60 days of a preclearance submission. They asserted that, since the Attorney General did not interpose an objection by August 3, the county was free under § 5 to proceed with at-large elections. 13 A three-judge District Court was again convened. It agreed with appellees. 509 F.Supp. 1334 (1981). Referring to § 5 of the Voting Rights Act, the court observed that the 1978 referendum approved a method of electing county officials different from that in effect on November 1, 1964. The letter received June 4, 1979, according to the District Court, was the required preclearance submission. Rejecting the Attorney General's argument that the letter was a request for reconsideration of his timely 1976 objection to at-large elections, the District Court declared: "This Court will not be a party to the [Attorney General's] effort to excuse his failure to act by mislabeling a submission for preclearance as a 'request for reconsideration.' "6 509 F.Supp., at 1336. II 14 We conclude that the District Court, not the Attorney General, mislabeled the June 1979 letter. The court ruled that that letter was a preclearance submission because the referendum approved a method of selecting officials different from that in effect on November 1, 1964. But the change to at-large County Council elections already had been submitted to the Attorney General for preclearance. The 1978 referendum merely approved the pre-existing at-large method—the very method to which the Attorney General earlier had made a timely objection. Because the referendum did no more than endorse a method of election that previously had been submitted to the Attorney General and that was the subject of an outstanding objection, the June letter did not amount to a new preclearance submission. 15 Indeed, the June letter fell squarely within the definition of a reconsideration request. The applicable regulation provides that the Attorney General will reconsider his objection upon a request by a submitting authority "to present further substantiating or explanatory information which was not previously available to the submitting authority." 28 CFR § 51.21(b) (1980). The results of the referendum constituted further explanatory information concerning at-large elections which the county asked the Attorney General to consider. The June letter thus was nothing more than a request that the Attorney General reconsider his earlier objection to at-large County Council elections in light of the referendum results. 16 The District Court put forward several reasons why, in its view, the June letter was not a reconsideration request. None of them persuades us. First, the District Court pointed out that the county already had made one reconsideration request. But the regulations do not limit a political subdivision to a single request for reconsideration. Second, the court relied upon 28 CFR § 51.21(b) (1980), which requires that a reconsideration request be made within 10 days of the Attorney General's objection. The Attorney General, however, follows the laudable practice of accepting reconsideration requests even though they are untimely, thus considering possibly important information that was not available within 10 days of the original objection. See also § 51.25 (permitting the Attorney General to reconsider his objection on his own motion). In any event, the mere fact that a reconsideration request is untimely does not convert it into a preclearance submission. Third, the court also cited § 51.21(b) for the proposition that a reconsideration request must be based on information not previously available. That requirement poses no obstacle to considering the June letter a reconsideration request, because the outcome of the referendum constituted information not previously available to Sumter County authorities. And, just as a reconsideration request does not become a preclearance submission merely by being untimely, so a reconsideration request does not become a preclearance submission simply by being repetitive. 17 Not only does the District Court decision mischaracterize the June letter, but its decision also has undesirable results. Under that court's ruling, a political subdivision could recommence the 60-day period at will by readopting the contested voting procedure. In addition, the Attorney General would be forced to interpose redundant objections to the same change in voting laws. For these reasons also, we refuse to accept the District Court's interpretation of § 5. 18 Finally, we have frequently stated that courts should grant deference to the interpretation given statutes and regulations by the officials charged with their administration. See, e.g., Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980); United States v. Sheffield Board of Comm'rs, 435 U.S. 110, 131, 98 S.Ct. 965, 979, 55 L.Ed.2d 148 (1978); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). In this case, the Attorney General employed reasonable definitions of a preclearance submission and of a reconsideration request when he treated the June letter as in the latter category. Indeed, the Attorney General followed the more sensible course.7 The judgment of the District Court is 19 Reversed. 20 THE CHIEF JUSTICE concurs in the judgment. 21 Justice REHNQUIST, with whom Justice POWELL joins, concurring. 22 The per curiam correctly concludes that the June 1, 1979, letter from Sumter County was a request for reconsideration, not a preclearance submission. Therefore, I concur in the per curiam's reasoning and conclusion. I concur reluctantly, however, for the record in this case illustrates what I view as the unreasonably burdensome and unrealistic control which the Federal Government routinely exercises over state and local governments under the Voting Rights Act. 23 The record recounts a 5-year effort by Sumter County to obtain the approval of several United States Assistant Attorneys General for an election method adopted by the South Carolina General Assembly. This effort included occasional correspondence with high-level attorneys in the Civil Rights Division of the Department of Justice, and, apparently, more frequent contact with low-level attorneys who requested information about plans, statistics, histories, names, places, and related facts. Although such communications are not unusual in dealings with today's federal bureaucracy, the record portrays a particularly frustrating effort to please a distant authority with veto power over the decisions of local officials. For example, an October 31, 1977, letter from appellees to an Assistant Attorney General explains the county's legal inability under state law to comply with various "suggestions" from the Department of Justice. The letter concludes: 24 "This leaves us in a dilemma. The [County] Council doesn't wish to be in the position of seeming to pay no attention to your suggestion that the form of election should properly be changed; or to seem to be disregarding your suggestions. On the other hand, the County's Council is advised that it has inadequate legal power to act under South Carolina law in the manner you seem to be suggesting. . . . Perhaps you can suggest something to us which would help us to resolve our difficulties which have us disturbed, perplexed, and confounded." 1 Record, Defendants' Exhibit 20, pp. 2-3, attached to County Defendants' Motion for Summary Judgment, filed Jan. 25, 1980. 25 Today's decision, of course, will only reopen the dispute and again place the county at the mercy of attorneys in the Justice Department. There seems to be something inherently unsatisfactory about a system which places such discretionary authority in the hands of a few unelected federal officials who are wholly detached from the realities of the locality and the preferences of the local electorate. Nonetheless, it is the system which Congress has established, and I therefore concur in the judgment. 1 Section 5, as amended, reads in pertinent part as follows: "Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the first sentence of section 1973b(b) of this title 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. . . . Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 and any appeal shall lie to the Supreme Court." 2 The Attorney General acted through the Assistant Attorney General, Civil Rights Division. 3 The letter states: "We are uncertain as to whether this submission should be termed a 'new submission,' or a 'request' for reconsideration of the Attorney General's objection to the County's original submission." 1 Record, Defendants' Exhibit 7, p. 3, attached to County Defendants' Motion for Summary Judgment filed with the District Court on Jan. 25, 1980. 4 Section 51.24 reads: "An objection shall be withdrawn if the submitting authority can produce information not previously available to it which satisfies the Attorney General that the change does not have a racially discriminatory purpose or effect. The Attorney General shall notify the submitting authority within 60 days of the request for reconsideration (provided that the Attorney General shall have at least 15 days following any conference that is held in which to decide) of his decision to continue or withdraw an objection, giving the reasons for his decision. A copy of the notification shall be sent to any party that has commented on the submission or has requested notice of the Attorney General's action thereon." 5 The District Court in its opinion, 509 F.Supp. 1334 (1981), omitted mention of the August 7 letter, which is Defendants' Exhibit 8 attached to the motion for summary judgment. The court stated that the Attorney General did not take action following the July 23 conference until he refused to withdraw his objection on September 27. 509 F.Supp., at 1336. In this respect, the decision of the District Court was clearly erroneous. 6 Once it concluded that the June letter was a preclearance submission, the District Court found that the Attorney General's actions were untimely. But it can hardly be said that the Attorney General failed to act in response to the June letter. We note again that Department of Justice officials held a conference with Sumter County officials on July 23, that the Attorney General refused to withdraw his objection on August 7, within 15 days of that conference, and that the Attorney General once more, on September 27, refused to withdraw his objection. 7 Before the District Court, there was a dispute whether the June letter was accompanied by a multipage document supplying, inter alia, the information required by 28 CFR § 51.10 (1980), or whether that document was first presented to the Department of Justice at the July 23 conference. If the document was not presented until July 23, the Attorney General's August 7 letter might not have been untimely even if the June letter were a preclearance submission. See §§ 51.3(b) and 51.18(a). See also City of Rome v. United States, 446 U.S. 156, 171, 100 S.Ct. 1548, 1559, 64 L.Ed.2d 119 (1980). Because we hold that the June letter was not a preclearance submission, we need not address this issue.

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454 U.S. 389 102 S.Ct. 713 70 L.Ed.2d 570 Raymond J. DONOVAN, Secretary of Labor, et al.v.RICHLAND COUNTY ASSOCIATION FOR RETARDED CITIZENS. No. 81-255. Jan. 11, 1982. PER CURIAM. 1 Appellee brought this action against officials of the United States Department of Labor seeking a declaratory judgment that the Fair Labor Standards Act does not apply to employees of the Sidney Group Home, a mental health facility operated by appellee. In the alternative, appellee sought a declaration that an application of the Act to the Home would be unconstitutional. The United States District Court for the District of Montana held that "[t]he Fair Labor Standards Act is unconstitutional as applied to the plaintiff Association in its operation of the Sidney Group Home." App. to Juris. Statement 26a. The federal officials appealed this decision to the Court of Appeals, which affirmed. Id., at 1a. The Government has now filed an appeal from that decision of the Court of Appeals. 2 Pursuant to 28 U.S.C. § 1252, appellants could have filed a direct appeal to this Court from the decision of the District Court.1 This right to pursue a direct appeal to this Court also served to deprive the Court of Appeals of jurisdiction, however, for 28 U.S.C. § 1291 provides that "[t]he 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." Since the Court of Appeals lacked jurisdiction in this case, its judgment and opinion must be vacated.2 3 In addition, the appeal filed from the decision of the Court of Appeals must be dismissed. Appellants' proper course of conduct was to file a direct appeal from the decision of the District Court. At this time, however, such relief is foreclosed by 28 U.S.C. § 2101(a). 4 We decline appellants' request that we remand this matter to the District Court for entry of a fresh decree from which a timely appeal might be taken. Although the complexities of litigation involving three-judge district courts made it appropriate to relieve certain appellants from the consequences of a misapplication of that somewhat arcane jurisprudence, as the cases cited in Justice POWELL's separate opinion demonstrate, that rationale has no application to appellants' simple failure in this case to follow the clear commands of 28 U.S.C. § 1252 and 28 U.S.C. § 1291.3 5 Judgment vacated and appeal dismissed. 6 Justice POWELL, with whom Justice BLACKMUN joins, concurring in part and dissenting in part. 7 I concur in the Court's decision to vacate the judgment and opinion of the Court of Appeals. But I would not simply dismiss the Government's appeal. Rather I would remand the matter to the District Court for entry of a fresh decree from which a timely appeal might be taken. This is the course customarily followed by the Court in cases such as this. See Query v. United States, 316 U.S. 486, 62 S.Ct. 1122, 86 L.Ed.2d 1616 (1942); see also Gonzales v. Employees Credit Union, 419 U.S. 90, 95 S.Ct. 289, 42 L.Ed.2d 249 (1974); United States v. Christian Echoes Ministry, 404 U.S. 561, 92 S.Ct. 663, 30 L.Ed.2d 716 (1972); Board of Regents of University of Texas System v. New Left Education Project, 404 U.S. 541, 92 S.Ct. 652, 30 L.Ed.2d 697 (1972); Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970); Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967). Title 28 U.S.C. § 1252 is designed to expedite review by this Court, not defeat it. Because review in this case has been unnecessarily delayed, the Court reasons that "a recognition of jurisdiction would permit needless delay in securing Supreme Court review of a decision holding a federal statute unconstitutional." Ante, at 391, n. 3. But just because this case already has been delayed too long does not require that we should compound the error by leaving the case in a posture defeating all review. 8 An Act of Congress has been held unconstitutional. I cannot believe that Congress intended § 1252 to serve the function of blocking review in this Court in these circumstances. Because the Court's disposition defeats the fundamental purpose of § 1252, I dissent. 1 "Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States . . . holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party." 28 U.S.C. § 1252. 2 The Court of Appeals actually entered two separate decisions in this case. In the judgment sought to be reviewed, the court affirmed the decision of the District Court holding the Fair Labor Standards Act unconstitutional as applied to the Sidney Group Home. After appellants had filed their notice of appeal in this case—and indeed after appellants had filed their jurisdictional statement in this Court—the Court of Appeals sua sponte recalled its earlier opinion and entered a new judgment reversing the District Court. Richland County Assn. v. Marshall, 660 F.2d 388 (1981). The filing of the notice of appeal clearly divested the Court of Appeals of any jurisdiction that it otherwise had to decide the merits of this case. 3 On the basis of the decision in McLucas v. DeChamplain, 421 U.S. 21, 95 S.Ct. 1365, 43 L.Ed.2d 699 (1975), appellants contend that any defect in the jurisdiction of the Court of Appeals does not deprive this Court of jurisdiction under 28 U.S.C. § 1252. Appellants' reliance on McLucas, however, is misplaced. In that case, the Court held that it had jurisdiction under § 1252 to consider a direct appeal taken from a decision of a district court, even though the district court lacked jurisdiction because a three-judge district court should have been convened. The Court noted that the purpose of § 1252 was "to afford immediate review in this Court in civil actions to which the United States or its officers are parties and thus will be bound by a holding of unconstitutionality." 421 U.S., at 31, 95 S.Ct., at 1371. To effectuate this statutory purpose, the Court held that immediate review was available; it was not necessary to vacate the decision of the district court and remand the case for further proceedings by a three-judge court. In contrast, appellants do not contend that the District Court in the instant case lacked jurisdiction over this controversy. Rather than pursue their right to immediate review in this Court, however, appellants obtained an intermediate decision from a Court of Appeals that had no power to consider this case. In so doing, they failed to pursue timely the right to immediate review conferred by § 1252. The fact that the Court of Appeals also held that the Act was unconstitutional does not resurrect the right created by § 1252 that had lapsed by appellants' action. This case is the antithesis of McLucas ; a recognition of jurisdiction would permit needless delay in securing Supreme Court review of a decision holding a federal statute unconstitutional. We cannot believe that Congress intended § 1252 to serve such a function.

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454 U.S. 364 102 S.Ct. 700 70 L.Ed.2d 551 Donald G. BOAGv.Ellis MacDOUGALL, Director, Arizona Department of Corrections. No. 80-6845. Jan. 11, 1982. PER CURIAM. 1 Petitioner, who was then an inmate of the Arizona Department of Corrections Reception and Treatment Center, filed a crudely written complaint in the United States District Court for the District of Arizona, in which he alleged, inter alia, that he had been placed in solitary confinement on March 3, 1980, without any notice of charges or any hearing, that he was threatened with violence when he asked what the charges were, and that he was still in "the hole" a week later. The District Court dismissed the complaint on the ground that the case was moot because petitioner had been transferred to another facility. 2 On appeal, the Court of Appeals did not endorse the District Court's mootness rationale, and rightfully so, since the transfer did not moot the damages claim. Nevertheless, the Court of Appeals affirmed, 642 F.2d 455 (1981), concluding that first, district courts have "especially broad" discretion to dismiss frivolous actions against prison officials under 28 U.S.C. § 1915(d), and second, petitioner's action is frivolous because it does not state a claim upon which relief can be granted. We need not address the permissible contours of the Court of Appeals' first conclusion, for its second conclusion is erroneous as a matter of law. Construing petitioner's inartful pleading liberally, as Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), instructs the federal courts to do in pro se actions, it states a cause of action. See Wolff v. McDonnell, 418 U.S. 539, 555-572, 94 S.Ct. 2963, 2974-2982, 41 L.Ed.2d 935 (1974). On the basis of the record before us, we cannot find a sufficient ground for affirming the dismissal of the complaint.* 3 The motion of petitioner for leave to proceed in forma pauperis and the petition for certiorari are granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. 4 It is so ordered. JUSTICE O'CONNOR, concurring. 5 I join in the per curiam, but write separately to emphasize two points. First, nothing in the Court's opinion prevents the District Court on remand from dismissing this suit under 28 U.S.C. § 1915(d) if it finds grounds to believe that the complaint is "malicious or frivolous." This Court only requires the District Court to articulate briefly its reasons for dismissal in order to facilitate appellate review. Second, I find merit in Justice REHNQUIST's comments that this Court is not equipped to correct every perceived error coming from the lower federal courts. The effectiveness of this Court rests in part on its practice of deciding cases of broad significance and of declining to expend limited judicial resources on cases, such as the present one, whose significance is limited to the parties. In exercising our discretionary certiorari jurisdiction, we should not be influenced solely by the merits of the petitioner's case. 6 JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and JUSTICE WHITE join, dissenting. 7 The per curiam reverses the decision of the Court of Appeals in this case because neither it nor the District Court articulated a proper basis for dismissing the petitioner's complaint. While I agree with the per curiam's conclusion that the case is not moot and that the complaint, construed liberally, alleges a cause of action, I find a sufficient basis to support the decision below. More importantly, I find this to be a good example of the kind of cases the Court should not decide. 8 The record shows that petitioner failed to comply with the local rules of the United States District Court for the District of Arizona, Phoenix Division, in which his complaint was filed. As part of his claim, petitioner filed a typewritten document entitled "From To Be Used By Prisoner In Filing a Complaint Under The Civil Rights Act, 42 U.S.C. § 1983." Section I of the document was headed "Previous Lawsuits," and subsection A required the plaintiff to answer: 9 "Have you begun other lawsuits in state or federal court dealing with the same facts in this action or otherwise relating to your imprisonment? Yes (____) No (____)." 10 Petitioner failed to check either the "Yes" or the "No" space and did not answer the next seven questions about previous filings, thereby violating the local rules of the District Court. Rule 53(a), Local Rules of the United States District Court for the District of Arizona. There appears to have been good reason for this omission. Records of the District Court, of which we may take judicial notice, Wells v. United States, 318 U.S. 257, 260, 63 S.Ct. 582, 584, 87 L.Ed. 746 (1943), indicate that petitioner had in the past filed at least 10 prisoner civil rights suits and had been denied leave to proceed in forma pauperis in at least 2 others. 11 In my view, the District Court was justified in dismissing the complaint, if for no other reason, on the ground that petitioner had simply refused to comply with local rules regarding the disclosure of previous lawsuits. The fact that neither lower court relied upon this ground for dismissal does not remove it from our consideration. A respondent may seek affirmance in this Court on any ground disclosed by the record which would not expand the relief granted. 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); Dandridge v. Williams, 397 U.S. 471, 475 n. 6, 90 S.Ct. 1153, 1156-57 n. 6, 25 L.Ed.2d 491 (1970); Ryerson v. United States, 312 U.S. 405, 408, 61 S.Ct. 656, 657-58, 85 L.Ed. 917 (1941). By reversing the decision below without first permitting the parties to brief the merits of this case, the per curiam precludes respondent from seeking affirmance on this or any other basis. 12 Even if there were no grounds for affirmance, I would find this case unworthy of the Court's attention. In our zeal to provide "equal justice under law," we must never forget that this Court is not a forum for the correction of errors. As was said by Chief Justice Vinson: 13 "The Supreme Court is not, and never has been, primarily concerned with the correction of errors in lower court decisions. In almost all cases within the Court's appellate jurisdiction, the petitioner has already received one appellate review of his case. The debates in the Constitutional Convention make clear that the purpose of the establishment of one supreme national tribunal was, in the words of John Rutledge of South Carolina, 'to secure the national rights & uniformity of Judgmts.' The function of the Supreme Court is, therefore, to resolve conflicts of opinion on federal questions that have arisen among lower courts, to pass upon questions of wide import under the Constitution, laws, and treaties of the United States, and to exercise supervisory power over the lower federal courts. If we took every case in which an interesting legal question is raised, or our prima facie impression is that the decision below is erroneous, we could not fulfill the Constitutional and statutory responsibilities placed upon the Court. To remain effective, the Supreme Court must continue to decide only those cases which present questions whose resolution will have immediate importance far beyond the particular facts and parties involved."* 14 It cannot be doubted that this case will have no importance beyond the facts and parties involved. 15 Finally, it is worth emphasizing what the Court is not saying in this case. The statutory provision under which petitioner was permitted to proceed in forma pauperis, 28 U.S.C. § 1915(d), expressly authorizes courts to dismiss such suits "if satisfied that the action is frivolous or malicious." This especially broad dismissal power, recognized in the footnote to the per curiam, safeguards the public and the courts from abuses of the in forma pauperis privilege by those who are not restrained by the costs of litigation. I do not read the per curiam as narrowing that power. Nor does the per curiam equate the dismissal power of § 1915(d) with that of Rule 12(b)(6) of the Federal Rules of Civil Procedure. Rather, the per curiam simply holds that the legal conclusions of the lower courts were erroneous. From reversal on that basis, in this case, I respectfully dissent. * Neither the Court of Appeals nor the District Court relied upon the argument advanced in the dissenting opinion. Indeed, the dissent's information that petitioner had attempted to file a dozen previous civil rights actions is not disclosed in the record, the opinions below, or the briefs filed with this Court. We recognize that 28 U.S.C. § 1915(d) vests the federal courts with broad discretion to take judicial notice of such information and to identify and dismiss frivolous complaints, but it does not appear from the papers before us that any such discretion was exercised by either the Court of Appeals or the District Court; both courts relied solely upon erroneous legal grounds for dismissing the complaint. We are in no position to decide, on the basis of these legal errors and this record, whether the argument advanced in the dissenting opinion would have "satisfied [the District Court] that the action is frivolous or malicious." 28 U.S.C. § 1915(d). A question of that character must be addressed in the first instance by the District Court. If a dismissal is to be based on the ground that petitioner failed to comply with the local rule, or that his prior filings justify the conclusion that his action is frivolous or malicious, a brief statement explaining that ground should be made by the District Court to facilitate intelligent appellate review. * Address of Chief Justice Vinson before the American Bar Association, Sept. 7, 1949 (quoted in R. Stern & E. Gressman, Supreme Court Practice 258 (5th ed. 1978)).

01

454 U.S. 464 102 S.Ct. 752 70 L.Ed.2d 700 VALLEY FORGE CHRISTIAN COLLEGE, Petitionerv.AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, INC., et al. No. 80-327. Argued Nov. 4, 1981. Decided Jan. 12, 1982. Syllabus Pursuant to its authority under the Property Clause, Congress enacted the Federal Property and Administrative Services Act of 1949 to provide an economical and efficient system for the disposal of surplus Federal Government property. Under the statute, property that has outlived its usefulness to the Government is declared "surplus" and may be transferred to private or other public entities. The Act authorizes the Secretary of Health, Education, and Welfare (HEW) (now the Secretary of Education) to assume responsibility for disposing of surplus real property for educational use, and he may sell such property to nonprofit, tax-exempt educational institutions for consideration that takes into account any benefit which has accrued or may accrue to the United States from the transferee's use of the property. Property formerly used as a military hospital was declared to be "surplus property" under the Act and was conveyed by the Department of HEW to petitioner church-related college. The appraised value of the property, $577,500, was discounted by the Secretary of HEW's computation of a 100% public benefit allowance, thus permitting petitioner to acquire the property without making any financial payment. Respondents, an organization dedicated to the separation of church and State and several of its employees, brought suit in Federal District Court, challenging the conveyance on the ground that it violated the Establishment Clause of the First Amendment, and alleging that each member of respondent organization "would be deprived of the fair and constitutional use of his (her) tax dollars." The District Court dismissed the complaint on the ground that respondents lacked standing to sue as taxpayers under Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947, and failed to allege any actual injury beyond a generalized grievance common to all taxpayers. The Court of Appeals reversed, holding that although respondents lacked standing as taxpayers to challenge the conveyance, they had standing merely as "citizens," claiming " 'injury in fact' to their shared individuated right to a government that 'shall make no law respecting the establishment of religion,' " which standing was sufficient to satisfy the "case or controversy" requirement of Art. III. Held: Respondents do not have standing, either in their capacity as taxpayers or as citizens, to challenge the conveyance in question. Pp. 471-490. (a) The exercise of judicial power under Art. III is restricted to litigants who can show "injury in fact" resulting from the action that they seek to have the court adjudicate. Pp. 471-476. (b) Respondents are without standing to sue as taxpayers, because the source of their complaint is not a congressional action but a decision by HEW to transfer a parcel of federal property and because the conveyance in question was not an exercise of Congress' authority conferred by the Taxing and Spending Clause but by the Property Clause. Cf. Flast v. Cohen, supra. Pp. 476-482. (c) Nor have respondents sufficiently alleged any other basis for standing to bring suit. Although they claim that the Constitution has been violated, they claim nothing else. They fail to identify any personal injury suffered as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not injury sufficient to confer standing under Art. III. While respondents are firmly committed to the constitutional principle of separation of church and State, standing is not measured by the intensity of the litigant's interest or the fervor of his advocacy. Pp. 482-487. (d) Enforcement of the Establishment Clause does not justify special exceptions from the standing requirements of Art. III. There is no place in our constitutional scheme for the philosophy that the business of the federal courts is correcting constitutional errors and that "cases and controversies" are at best merely convenient vehicles for doing so and at worst nuisances that may be dispensed with when they become obstacles to that transcendent endeavor. And such philosophy does not become more palatable when the underlying merits concern the Establishment Clause. Pp. 488-490. 3 Cir., 619 F.2d 252, reversed. C. Clark Hodgson, Jr., Philadelphia, Pa., for petitioner. Sol. Gen. Rex E. Lee, Washington, D. C., for federal respondents in support of the petitioner. Lee Boothby, Berrien Springs, Mich., for non-federal respondents. Justice REHNQUIST delivered the opinion of the Court. 1 * Article IV, § 3, cl. 2, of the Constitution vests Congress with the "Power to dispose of and make all needful Rules and Regulations respecting the . . . Property belonging to the United States." Shortly after the termination of hostilities in the Second World War, Congress enacted the Federal Property and Administrative Services Act of 1949, 63 Stat. 377, as amended, 40 U.S.C. § 471 et seq. (1976 ed. and Supp. III). The Act was designed, in part, to provide "an economical and efficient system for . . . the disposal of surplus property." 63 Stat. 378, 40 U.S.C. § 471. In furtherance of this policy, federal agencies are directed to maintain adequate inventories of the property under their control and to identify excess property for transfer to other agencies able to use it. See 63 Stat. 384, 40 U.S.C. §§ 483(b), (c).1 Property that has outlived its usefulness to the Federal Government is declared "surplus"2 and may be transferred to private or other public entities. See generally 63 Stat. 385, as amended, 40 U.S.C. § 484. 2 The Act authorizes the Secretary of Health, Education, and Welfare (now the Secretary of Education3) to assume responsibility for disposing of surplus real property "for school, classroom, or other educational use." 63 Stat. 387, as amended, 40 U.S.C. § 484(k)(1). Subject to the disapproval of the Administrator of General Services, the Secretary may sell or lease the property to nonprofit, tax-exempt educational institutions for consideration that takes into account "any benefit which has accrued or may accrue to the United States" from the transferee's use of the property. 63 Stat. 387, 40 U.S.C. §§ 484(k)(1)(A), (C).4 By regulation, the Secretary has provided for the computation of a "public benefit allowance," which discounts the transfer price of the property "on the basis of benefits to the United States from the use of such property for educational purposes." 34 CFR § 12.9(a) (1980).5 3 The property which spawned this litigation was acquired by the Department of the Army in 1942, as part of a larger tract of approximately 181 acres of land northwest of Philadelphia. The Army built on that land the Valley Forge General Hospital, and for 30 years thereafter, that hospital provided medical care for members of the Armed Forces. In April 1973, as part of a plan to reduce the number of military installations in the United States, the Secretary of Defense proposed to close the hospital, and the General Services Administration declared it to be "surplus property." 4 The Department of Health, Education, and Welfare (HEW) eventually assumed responsibility for disposing of portions of the property, and in August 1976, it conveyed a 77-acre tract to petitioner, the Valley Forge Christian College.6 The appraised value of the property at the time of conveyance was $577,500.7 This appraised value was discounted, however, by the Secretary's computation of a 100% public benefit allowance, which permitted petitioner to acquire the property without making any financial payment for it. The deed from HEW conveyed the land in fee simple with certain conditions subsequent, which required petitioner to use the property for 30 years solely for the educational purposes described in petitioner's application. In that description, petitioner stated its intention to conduct "a program of education . . . meeting the accrediting standards of the State of Pennsylvania, The American Association of Bible Colleges, the Division of Education of the General Council of the Assemblies of God and the Veterans Administration." 5 Petitioner is a nonprofit educational institution operating under the supervision of a religious order known as the Assemblies of God. By its own description, petitioner's purpose is "to offer systematic training on the collegiate level to men and women for Christian service as either ministers or laymen." App. 34. Its degree programs reflect this orientation by providing courses of study "to train leaders for church related ministries." Id., at 102. Faculty members must "have been baptized in the Holy Spirit and be living consistent Christian lives," id., at 37, and all members of the college administration must be affiliated with the Assemblies of God, id., at 36. In its application for the 77-acre tract, petitioner represented that, if it obtained the property, it would make "additions to its offerings in the arts and humanities," and would strengthen its "psychology" and "counselling" courses to provide services in inner-city areas. 6 In September 1976, respondents Americans United for Separation of Church and State, Inc. (Americans United), and four of its employees, learned of the conveyance through a news release. Two months later, they brought suit in the United States District Court for the District of Columbia, later transferred to the Eastern District of Pennsylvania, to challenge the conveyance on the ground that it violated the Establishment Clause of the First Amendment.8 Seeid., at 10. In its amended complaint, Americans United described itself as a nonprofit organization composed of 90,000 "taxpayer members." The complaint asserted that each member "would be deprived of the fair and constitutional use of his (her) tax dollar for constitutional purposes in violation of his (her) rights under the First Amendment of the United States Constitution." Ibid. Respondents sought a declaration that the conveyance was null and void, and an order compelling petitioner to transfer the property back to the United States. Id., at 12. 7 On petitioner's motion, the District Court granted summary judgment and dismissed the complaint. App. to Pet. for Cert. A42. The court found that respondents lacked standing to sue as taxpayers under Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), and had "failed to allege that they have suffered any actual or concrete injury beyond a generalized grievance common to all taxpayers." App. to Pet. for Cert. A43. 8 Respondents appealed to the Court of Appeals for the Third Circuit, which reversed the judgment of the District Court by a divided vote. Americans United v. U.S. Dept. of HEW, 619 F.2d 252 (1980). All members of the court agreed that respondents lacked standing as taxpayers to challenge the conveyance under Flast v. Cohen, supra, since that case extended standing to taxpayers qua taxpayers only to challenge congressional exercises of the power to tax and spend conferred by Art. I, § 8, of the Constitution, and this conveyance was authorized by legislation enacted under the authority of the Property Clause, Art. IV, § 3, cl. 2. Notwithstanding this significant factual difference from Flast, the majority of the Court of Appeals found that respondents had standing merely as "citizens," claiming " 'injury in fact' to their shared individuated right to a government that 'shall make no law respecting the establishment of religion.' " 619 F.2d, at 261. In the majority's view, this "citizen standing" was sufficient to satisfy the "case or controversy" requirement of Art. III. One judge, perhaps sensing the doctrinal difficulties with the majority's extension of standing, wrote separately, expressing his view that standing was necessary to satisfy "the need for an available plaintiff," without whom "the Establishment Clause would be rendered virtually unenforceable" by the judiciary. Id., at 267, 268. The dissenting judge expressed the view that respondents' allegations constituted a "generalized grievance . . . too abstract to satisfy the injury in fact component of standing." Id., at 269. He therefore concluded that their standing to contest the transfer was barred by this Court's decisions in Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974), and United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974). 619 F.2d, at 270-271. 9 Because of the unusually broad and novel view of standing to litigate a substantive question in the federal courts adopted by the Court of Appeals, we granted certiorari, 450 U.S. 909, 101 S.Ct. 1345, 67 L.Ed.2d 332 (1981), and we now reverse. II 10 Article III of the Constitution limits the "judicial power" of the United States to the resolution of "cases" and "controversies." The constitutional power of federal courts cannot be defined, and indeed has no substance, without reference to the necessity "to adjudge the legal rights of litigants in actual controversies." Liverpool S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899 (1885). The requirements of Art. III are not satisfied merely because a party requests a court of the United States to declare its legal rights, and has couched that request for forms of relief historically associated with courts of law in terms that have a familiar ring to those trained in the legal process. The judicial power of the United States defined by Art. III is not an unconditioned authority to determine the constitutionality of legislative or executive acts. The power to declare the rights of individuals and to measure the authority of governments, this Court said 90 years ago, "is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy." Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345, 12 S.Ct. 400, 402, 36 L.Ed. 176 (1892). Otherwise, the power "is not judicial . . . in the sense in which judicial power is granted by the Constitution to the courts of the United States." United States v. Ferreira, 13 How. 40, 48, 14 L.Ed. 42 (1852). 11 As an incident to the elaboration of this bedrock requirement, this Court has always required that a litigant have "standing" to challenge the action sought to be adjudicated in the lawsuit. The term "standing" subsumes a blend of constitutional requirements and prudential considerations, see Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975), and it has not always been clear in the opinions of this Court whether particular features of the "standing" requirement have been required by Art. III ex proprio vigore, or whether they are requirements that the Court itself has erected and which were not compelled by the language of the Constitution. See Flast v. Cohen, supra, at 97, 88 S.Ct., at 1951. 12 A recent line of decisions, however, has resolved that ambiguity, at least to the following extent: at an irreducible minimum, Art. III requires the party who invokes the court's authority to "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979), and that the injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision," Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976).9 In this manner does Art. III limit the federal judicial power "to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process." Flast v. Cohen, 392 U.S., at 97, 88 S.Ct., at 1951. 13 The requirement of "actual injury redressable by the court," Simon, supra, 426 U.S., at 39, 96 S.Ct., at 1924, serves several of the "implicit policies embodied in Article III," Flast, supra, 392 U.S., at 96, 88 S.Ct., at 1950. It tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action. The "standing" requirement serves other purposes. Because it assures an actual factual setting in which the litigant asserts a claim of injury in fact, a court may decide the case with some confidence that its decision will not pave the way for lawsuits which have some, but not all, of the facts of the case actually decided by the court. 14 The Art. III aspect of standing also lso reflects a due regard for the autonomy of those persons likely to be most directly affected by a judicial order. The federal courts have abjured appeals to their authority which would convert the judicial process into "no more than a vehicle for the vindication of the value interests of concerned bystanders." United States v. SCRAP, 412 U.S. 669, 687, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1973). Were the federal courts merely publicly funded forums for the ventilation of public grievances or the refinement of jurisprudential understanding, the concept of "standing" would be quite unnecessary. But the "cases and controversies" language of Art. III forecloses the conversion of courts of the United States into judicial versions of college debating forums. As we said in Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972): 15 "The requirement that a party seeking review must allege facts showing that he is himself adversely affected . . . does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome." 16 The exercise of judicial power, which can so profoundly affect the lives, liberty, and property of those to whom it extends, is therefore restricted to litigants who can show "injury in fact" resulting from the action which they seek to have the court adjudicate. 17 The exercise of the judicial power also affects relationships between the coequal arms of the National Government. The effect is, of course, most vivid when a federal court declares unconstitutional an act of the Legislative or Executive Branch. While the exercise of that "ultimate and supreme function," Chicago & Grand Trunk R. Co. v. Wellman, supra, at 345, 12 S.Ct., at 402, is a formidable means of vindicating individual rights, when employed unwisely or unnecessarily it is also the ultimate threat to the continued effectiveness of the federal courts in performing that role. While the propriety of such action by a federal court has been recognized since Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), it has been recognized as a tool of last resort on the part of the federal judiciary throughout its nearly 200 years of existence: 18 "[R]epeated and essentially head-on confrontations between the life-tenured branch and the representative branches of government will not, in the long run, be beneficial to either. The public confidence essential to the former and the vitality critical to the latter may well erode if we do not exercise self-restraint in the utilization of our power to negative the actions of the other branches." United States v. Richardson, 418 U.S., at 188, 94 S.Ct., at 2952 (POWELL, J., concurring). 19 Proper regard for the complex nature of our constitutional structure requires neither that the Judicial Branch shrink from a confrontation with the other two coequal branches of the Federal Government, nor that it hospitably accept for adjudication claims of constitutional violation by other branches of government where the claimant has not suffered cognizable injury. Thus, this Court has "refrain[ed] from passing upon the constitutionality of an act [of the representative branches] unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it." Blair v. United States, 250 U.S. 273, 279, 39 S.Ct. 468, 470, 63 L.Ed. 979 (1919). The importance of this precondition should not be underestimated as a means of "defin[ing] the role assigned to the judiciary in a tripartite allocation of power." Flast v. Cohen, supra, at 95, 88 S.Ct., at 1950. 20 Beyond the constitutional requirements, the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing. Thus, 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, 422 U.S., at 499, 95 S.Ct., at 2205.10 In addition, even when the plaintiff has alleged redressable injury sufficient to meet the requirements of Art. III, the Court has refrained from adjudicating "abstract questions of wide public significance" which amount to "generalized grievances," pervasively shared and most appropriately addressed in the representative branches. Id., at 499-500, 95 S.Ct., at 2205-2206.11 Finally, the Court has required that the plaintiff's complaint fall within "the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970).12 21 Merely to articulate these principles is to demonstrate their close relationship to the policies reflected in the Art. III requirement of actual or threatened injury amenable to judicial remedy. But neither the counsels of prudence nor the policies implicit in the "case or controversy" requirement should be mistaken for the rigorous Art. III requirements themselves. Satisfaction of the former cannot substitute for a demonstration of " 'distinct and palpable injury' . . . that is likely to be redressed if the requested relief is granted." Gladstone, Realtors v. Village of Bellwood, 441 U.S., at 100, 99 S.Ct., at 1608 (quoting Warth v. Seldin, supra, 422 U.S., at 501, 95 S.Ct., at 2206). That requirement states a limitation on judicial power, not merely a factor to be balanced in the weighing of so-called "prudential" considerations. 22 We need not mince words when we say that the concept of "Art. III standing" has not been defined with complete consistency in all of the various cases decided by this Court which have discussed it, nor when we say that this very fact is probably proof that the concept cannot be reduced to a one-sentence or one-paragraph definition. But of one thing we may be sure: Those who do not possess Art. III standing may not litigate as suitors in the courts of the United States.13 Article III, which is every bit as important in its circumscription of the judicial power of the United States as in its granting of that power, is not merely a troublesome hurdle to be overcome if possible so as to reach the "merits" of a lawsuit which a party desires to have adjudicated; it is a part of the basic charter promulgated by the Framers of the Constitution at Philadelphia in 1787, a charter which created a general government, provided for the interaction between that government and the governments of the several States, and was later amended so as to either enhance or limit its authority with respect to both States and individuals. III 23 The injury alleged by respondents in their amended complaint is the "depriv[ation] of the fair and constitutional use of [their] tax dollar." App. 10.14 As a result, our discussion must begin with Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923) (decided with Massachusetts v. Mellon). In that action a taxpayer brought suit challenging the constitutionality of the Maternity Act of 1921, which provided federal funding to the States for the purpose of improving maternal and infant health. The injury she alleged consisted of the burden of taxation in support of an unconstitutional regime, which she characterized as a deprivation of property without due process. "Looking through forms of words to the substance of [the] complaint," the Court concluded that the only "injury" was the fact "that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional." Id., at 488, 43 S.Ct., at 601. Any tangible effect of the challenged statute on the plaintiff's tax burden was "remote, fluctuating and uncertain." Id., at 487, 43 S.Ct., at 601. In rejecting this as a cognizable injury sufficient to establish standing, the Court admonished: 24 "The party who invokes the power [of judicial review] must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally. . . . Here the parties plaintiff have no such case." Id., at 488, 43 S.Ct., at 601. 25 Following the decision in Frothingham, the Court confirmed that the expenditure of public funds in an allegedly unconstitutional manner is not an injury sufficient to confer standing, even though the plaintiff contributes to the public coffers as a taxpayer. In Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952), plaintiffs brought suit as citizens and taxpayers, claiming that a New Jersey law which authorized public school teachers in the classroom to read passages from the Bible violated the Establishment Clause of the First Amendment. The Court dismissed the appeal for lack of standing: 26 "This Court has held that the interests of a taxpayer in the moneys of the federal treasury are too indeterminable, remote, uncertain and indirect to furnish a basis for an appeal to the preventive powers of the Court over their manner of expenditure. . . . Without disparaging the availability of the remedy by taxpayer's action to restrain unconstitutional acts which result in direct pecuniary injury, we reiterate what the Court said of a federal statute as equally true when a state Act is assailed: 'The party who invokes the power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.' " Id., at 433-434, 72 S.Ct., at 397 (quoting Frothingham v. Mellon, supra, 262 U.S., at 488, 43 S.Ct., at 601) (citations omitted). 27 In short, the Court found that plaintiffs' grievance was "not a direct dollars-and-cents injury but is a religious difference." 342 U.S., at 434, 72 S.Ct., at 397. A case or controversy did not exist, even though the "clash of interests [was] real and . . . strong." Id., at 436, 72 S.Ct., at 398 (Douglas, J., dissenting). 28 The Court again visited the problem of taxpayer standing in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). The taxpayer plaintiffs in Flast sought to enjoin the expenditure of federal funds under the Elementary and Secondary Education Act of 1965, which they alleged were being used to support religious schools in violation of the Establishment Clause. The Court developed a two-part test to determine whether the plaintiffs had standing to sue. First, because a taxpayer alleges injury only by virtue of his liability for taxes, the Court held that "a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution." Id., at 102, 88 S.Ct., at 1954. Second, the Court required the taxpayer to "show that the challenged enactment exceeds specific constitutional limitations upon the exercise of the taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8." Id., at 102-103, 88 S.Ct., at 1954. 29 The plaintiffs in Flast satisfied this test because "[t]heir constitutional challenge [was] made to an exercise by Congress of its power under Art. I, § 8, to spend for the general welfare," id., at 103, 88 S.Ct., at 1954, and because the Establishment Clause, on which plaintiffs' complaint rested, "operates as a specific constitutional limitation upon the exercise by Congress of the taxing and spending power conferred by Art. I, § 8," id., at 104, 88 S.Ct., at 1954. The Court distinguished Frothingham v. Mellon, supra, on the ground that Mrs. Frothingham had relied, not on a specific limitation on the power to tax and spend, but on a more general claim based on the Due Process Clause. 392 U.S., at 105, 88 S.Ct., at 1955. Thus, the Court reaffirmed that the "case or controversy" aspect of standing is unsatisfied "where a taxpayer seeks to employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System." Id., at 106, 88 S.Ct., at 1956. 30 Unlike the plaintiffs in Flast, respondents fail the first prong of the test for taxpayer standing. Their claim is deficient in two respects. First, the source of their complaint is not a congressional action, but a decision by HEW to transfer a parcel of federal property.15 Flast limited taxpayer standing to challenges directed "only [at] exercises of congressional power." Id., at 102, 88 S.Ct., at 1954. See Schlesinger v. Reservists Committee to Stop the War, 418 U.S., at 228, 94 S.Ct., at 2935 (denying standing because the taxpayer plaintiffs "did not challenge an enactment under Art. I, § 8, but rather the action of the Executive Branch"). 31 Second, and perhaps redundantly, the the property transfer about which respondents complain was not an exercise of authority conferred by the Taxing and Spending Clause of Art. I, § 8. The authorizing legislation, the Federal Property and Administrative Services Act of 1949, was an evident exercise of Congress' power under the Property Clause, Art. IV, § 3, cl. 2.16 Respondents do not dispute this conclusion, see Brief for Respondents Americans United et al. 10, and it is decisive of any claim of taxpayer standing under the Flast precedent.17 32 Any doubt that once might have existed concerning the rigor with which the Flast exception to the Frothingham principle ought to be applied should have been erased by this Court's recent decisions in United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974), and Schlesinger v. Reservists Committee to Stop the War, supra. In Richardson, the question was whether the plaintiff had standing as a federal taxpayer to argue that legislation which permitted the Central Intelligence Agency to withhold from the public detailed information about its expenditures violated the Accounts Clause of the Constitution.18 We rejected plaintiff's claim of standing because "his challenge [was] not addressed to the taxing or spending power, but to the statutes regulating the CIA." 418 U.S., at 175, 94 S.Ct., at 2945. The "mere recital" of those claims "demonstrate[d] how far he [fell] short of the standing criteria of Flast and how neatly he [fell] within the Frothingham holding left undisturbed." Id., at 174-175, 94 S.Ct., at 2945. 33 The claim in Schlesinger was marred by the same deficiency. Plaintiffs in that case argued that the Incompatibility Clause of Art. I19 prevented certain Members of Congress from holding commissions in the Armed Forces Reserve. We summarily rejected their assertion of standing as taxpayers because they "did not challenge an enactment under Art. I, § 8, but rather the action of the Executive Branch in permitting Members of Congress to maintain their Reserve status." 418 U.S., at 228, 94 S.Ct., at 2935 (footnote omitted). 34 Respondents, therefore, are plainly without standing to sue as taxpayers. The Court of Appeals apparently reached the same conclusion. It remains to be seen whether respondents have alleged any other basis for standing to bring this suit. IV 35 Although the Court of Appeals properly doubted respondents' ability to establish standing solely on the basis of their taxpayer status, it considered their allegations of taxpayer injury to be "essentially an assumed role." 619 F.2d, at 261. 36 "Plaintiffs have no reason to expect, nor perhaps do they care about, any personal tax saving that might result should they prevail. The crux of the interest at stake, the plaintiffs argue, is found in the Establishment Clause, not in the supposed loss of money as such. As a matter of primary identity, therefore, the plaintiffs are not so much taxpayers as separationists . . . ." Ibid. 37 In the court's view, respondents had established standing by virtue of an " 'injury in fact' to their shared individuated right to a government that 'shall make no law respecting the establishment of religion.' " Ibid. The court distinguished this "injury" from "the question of 'citizen standing' as such." Id., at 262. Although citizens generally could not establish standing simply by claiming an interest in governmental observance of the Constitution, respondents had "set forth instead a particular and concrete injury" to a "personal constitutional right." Id., at 265. 38 The Court of Appeals was surely correct in recognizing that the Art. III requirements of standing are not satisfied by "the abstract injury in nonobservance of the Constitution asserted by . . . citizens." Schlesinger v. Reservists Committee to Stop the War, 418 U.S., at 223, n. 13, 94 S.Ct., at 2933, n. 13. This Court repeatedly has rejected claims of standing predicated on " 'the right, possessed by every citizen, to require that the Government be administered according to law . . . .' Fairchild v. Hughes, 258 U.S. 126, 129 [42 S.Ct. 274, 275, 66 L.Ed. 499] [1922]." Baker v. Carr, 369 U.S. 186, 208, 82 S.Ct. 691, 705, 7 L.Ed.2d 663 (1962). See Schlesinger v. Reservists Committee to Stop the War, supra, 418 U.S. at 216-222, 94 S.Ct., at 2929-2932; Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972); Ex parte Levitt, 302 U.S. 633, 58 S.Ct. 1, 82 L.Ed. 493 (1937). Such claims amount to little more than attempts "to employ a federal court as a forum in which to air . . . generalized grievances about the conduct of government." Flast v. Cohen, 392 U.S., at 106, 88 S.Ct., at 1956. 39 In finding that respondents had alleged something more than "the generalized interest of all citizens in constitutional governance," Schlesinger, supra, 418 U.S., at 217, 94 S.Ct., at 2930, the Court of Appeals relied on factual differences which we do not think amount to legal distinctions. The court decided that respondents' claim differed from those in Schlesinger and Richardson, which were predicated, respectively, on the Incompatibility and Accounts Clauses, because "it is at the very least arguable that the Establishment Clause creates in each citizen a 'personal constitutional right' to a government that does not establish religion." 619 F.2d, at 265 (footnote omitted). The court found it unnecessary to determine whether this "arguable" proposition was correct, since it judged the mere allegation of a legal right sufficient to confer standing. 40 This reasoning process merely disguises, we think with a rather thin veil, the inconsistency of the court's results with our decisions in Schlesinger and Richardson. The plaintiffs in those cases plainly asserted a "personal right" to have the Government act in accordance with their views of the Constitution; indeed, we see no barrier to the assertion of such claims with respect to any constitutional provision. But assertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Art. III without draining those requirements of meaning. Nor can Schlesinger and Richardson be distinguished on the ground that the Incompatibility and Accounts Clauses are in some way less "fundamental" than the Establishment Clause. Each establishes a norm of conduct which the Federal Government is bound to honor—to no greater or lesser extent than any other inscribed in the Constitution. To the extent the Court of Appeals relied on a view of standing under which the Art. III burdens diminish as the "importance" of the claim on the merits increases, we reject that notion. The requirement of standing "focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated." Flast v. Cohen, supra, 392 U.S., at 99, 88 S.Ct., at 1952. Moreover, we know of no principled basis on which to create a hierarchy of constitutional values or a complementary "sliding scale" of standing which might permit respondents to invoke the judicial power of the United States.20 "The proposition that all constitutional provisions are enforceable by any citizen simply because citizens are the ultimate beneficiaries of those provisions has no boundaries." Schlesinger v. Reservists Committee to Stop the War, supra, 418 U.S., at 227, 94 S.Ct., at 2935. 41 The complaint in this case shares a common deficiency with those in Schlesinger and Richardson. Although respondents claim that the Constitution has been violated, they claim nothing else. They fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in constitutional terms. It is evident that respondents are firmly committed to the constitutional principle of separation of church and State, but standing is not measured by the intensity of the litigant's interest or the fervor of his advocacy. "[T]hat concrete adverseness which sharpens the presentation of issues," Baker v. Carr, 369 U.S., at 204, 82 S.Ct., at 703, is the anticipated consequence of proceedings commenced by one who has been injured in fact; it is not a permissible substitute for the showing of injury itself.21 42 In reaching this conclusion, we do not retreat from our earlier holdings that standing may be predicated on noneconomic injury. See, e. g., United States v. SCRAP, 412 U.S., at 686-688, 93 S.Ct., at 2415-2416; Association of Data Processing Service Orgs. v. Camp, 397 U.S., at 153-154, 90 S.Ct., at 829-830. We simply cannot see that respondents have alleged an injury of any kind, economic or otherwise, sufficient to confer standing.22 Respondents complain of a transfer of property located in Chester County, Pa. The named plaintiffs reside in Maryland and Virginia;23 their organizational headquarters are located in Washington, D.C. They learned of the transfer through a news release. Their claim that the Government has violated the Establishment Clause does not provide a special license to roam the country in search of governmental wrongdoing and to reveal their discoveries in federal court.24 The federal courts were simply not constituted as ombudsmen of the general welfare. V 43 The Court of Appeals in this case ignored unambiguous limitations on taxpayer and citizen standing. It appears to have done so out of the conviction that enforcement of the Establishment Clause demands special exceptions from the requirement that a plaintiff allege " 'distinct and palpable injury to himself,' . . . that is likely to be redressed if the requested relief is granted." Gladstone, Realtors v. Village of Bellwood, 441 U.S., at 100, 99 S.Ct., at 1608 (quoting Warth v. Seldin, 422 U.S., at 501, 95 S.Ct., at 2206). The court derived precedential comfort from Flast v. Cohen: "The underlying justification for according standing in Flast it seems, was the implicit recognition that the Establishment Clause does create in every citizen a personal constitutional right, such that any citizen, including taxpayers, may contest under that clause the constitutionality of federal expenditures." 619 F.2d, at 262.25 The concurring opinion was even more direct. In its view, "statutes alleged to violate the Establishment Clause may not have an individual impact sufficient to confer standing in the traditional sense." Id., at 267-268. To satisfy "the need for an available plaintiff," id., at 267, and thereby to assure a basis for judicial review, respondents should be granted standing because, "as a practical matter, no one is better suited to bring this lawsuit and thus vindicate the freedoms embodied in the Establishment Clause," id., at 266. 44 Implicit in the foregoing is the philosophy that the business of the federal courts is correcting constitutional errors, and that "cases and controversies" are at best merely convenient vehicles for doing so and at worst nuisances that may be dispensed with when they become obstacles to that transcendent endeavor. This philosophy has no place in our constitutional scheme. It does not become more palatable when the underlying merits concern the Establishment Clause. Respondents' claim of standing implicitly rests on the presumption that violations of the Establishment Clause typically will not cause injury sufficient to confer standing under the "traditional" view of Art. III. But "[t]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing." Schlesinger v. Reservists Committee to Stop the War, 418 U.S., at 227, 94 S.Ct., at 2935. This view would convert standing into a requirement that must be observed only when satisfied. Moreover, we are unwilling to assume that injured parties are nonexistent simply because they have not joined respondents in their suit. The law of averages is not a substitute for standing. 45 Were we to accept respondents' claim of standing in this case, there would be no principled basis for confining our exception to litigants relying on the Establishment Clause. Ultimately, that exception derives from the idea that the judicial power requires nothing more for its invocation than important issues and able litigants.26 The existence of injured parties who might not wish to bring suit becomes irrelevant. Because we are unwilling to countenance such a departure from the limits on judicial power contained in Art. III, the judgment of the Court of Appeals is reversed. 46 It is so ordered. 47 Justice BRENNAN, with whom Justice MARSHALL and Justice BLACKMUN join, dissenting. 48 A plaintiff's standing is a jurisdictional matter for Art. III courts, and thus a "threshold question" to be resolved before turning attention to more "substantive" issues. See Linda R. S. v. Richard D., 410 U.S. 614, 616, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). But in consequence there is an impulse to decide difficult questions of substantive law obliquely in the course of opinions purporting to do nothing more than determine what the Court labels "standing"; this accounts for the phenomenon of opinions, such as the one today, that tend merely to obfuscate, rather than inform, our understanding of the meaning of rights under the law. The serious by-product of that practice is that the Court disregards its constitutional responsibility when, by failing to acknowledge the protections afforded by the Constitution, it uses "standing to slam the courthouse door against plaintiffs who are entitled to full consideration of their claims on the merits."1 49 The opinion of the Court is a stark example of this unfortunate trend of resolving cases at the "threshold" while obscuring the nature of the underlying rights and interests at stake. The Court waxes eloquent on the blend of prudential and constitutional considerations that combine to create our misguided "standing" jurisprudence. But not one word is said about the Establishment Clause right that the plaintiff seeks to enforce. And despite its pat recitation of our standing decisions, the opinion utterly fails, except by the sheerest form of ipse dixit, to explain why this case is unlike Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), and is controlled instead by Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). 50 * There is now much in the way of settled doctrine in our understanding of the injury-in-fact requirement of Art. III. At the core is the irreducible minimum that persons seeking judicial relief from an Art. III court have "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. . . ." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2629, 57 L.Ed.2d 595 (1978). Cases of this Court have identified the two essential components of this "personal stake" requirement. Plaintiff must have suffered, or be threatened with, some "distinct and palpable injury," Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). In addition, there must be some causal connection between plaintiff's asserted injury and defendant's challenged action. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41, 96 S.Ct. 1917, 1925, 48 L.Ed.2d 450 (1976); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977). The Constitution requires an Art. III court to ascertain that both requirements are met before proceeding to exercise its authority on behalf of any plaintiff, whether the form of relief requested is equitable or monetary. 51 But the existence of Art. III injury "often turns on the nature and source of the claim asserted." Warth v. Seldin, supra, 422 U.S. at 500, 95 S.Ct. at 2206.2 Neither "palpable injury" nor "causation" is a term of unvarying meaning. There is much in the way of "mutual understandings" and "common-law traditions" that necessarily guides the definitional inquiry.3 In addition, the Constitution, and by legislation the Congress, may impart a new, and on occasion unique, meaning to the terms "injury" and "causation" in particular statutory or constitutional contexts. The Court makes a fundamental mistake when it determines that a plaintiff has failed to satisfy the two-pronged "injury-in-fact" test, or indeed any other test of "standing," without first determining whether the Constitution or a statute defines injury, and creates a cause of action for redress of that injury, in precisely the circumstance presented to the Court. 52 It may of course happen that a person believing himself injured in some obscure manner by government action will be held to have no legal right under the constitutional or statutory provision upon which he relies, and will not be permitted to complain of the invasion of another person's "rights."4 It is quite another matter to employ the rhetoric of "standing" to deprive a person, whose interest is clearly protected by the law, of the opportunity to prove that his own rights have been violated. It is in precisely that dissembling enterprise that the Court indulges today. 53 The "case and controversy" limitation of Art. III overrides no other provision of the Constitution.5 To construe that Article to deny standing " 'to the class for whose sake [a] constitutional protection is given,' " Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697 (1960), quoting New York ex rel. Hatch v. Reardon, 204 U.S. 152, 160, 27 S.Ct. 188, 190, 51 L.Ed. 415 (1907), simply turns the Constitution on its head. Article III was designed to provide a hospitable forum in which persons enjoying rights under the Constitution could assert those rights. How are we to discern whether a particular person is to be afforded a right of action in the courts? The Framers did not, of course, employ the modern vocabulary of standing. But this much is clear: The drafters of the Bill of Rights surely intended that the particular beneficiaries of their legacy should enjoy rights legally enforceable in courts of law.6 See West Virginia Bd. of Education v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628 (1943). 54 With these observations in mind, I turn to the problem of taxpayer standing in general, and this case in particular. II A. 55 Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), involved a challenge to the Maternity Act of 1921, 42 Stat. 224, which provided financial grants to States that agreed to cooperate in programs designed to reduce infant and maternal mortality. Appellant contended that Congress, in enacting the program, had exceeded its authority under Art. I, and had intruded on authority reserved to the States. The Court described Mrs. Frothingham's claim as follows: 56 "[T]his plaintiff alleges . . . that she is a taxpayer of the United States; and her contention, though not clear, seems to be that the effect of the appropriations complained of will be to increase the burden of future taxation and thereby take her property without due process of law. The right of a taxpayer to enjoin the execution of a federal appropriation act, on the ground that it is invalid and will result in taxation for illegal purposes, has never been passed upon by this Court." 262 U.S., at 486, 43 S.Ct., at 600. 57 The Court conceded that it had historically treated the interest of a municipal taxpayer in the application of the municipality's funds as sufficiently direct and immediate to warrant injunctive relief to prevent misuse. Ibid. Bradfield v. Roberts, 175 U.S. 291, 20 S.Ct. 121, 44 L.Ed. 168 (1899), in which the Court permitted a federal taxpayer to present an Establishment Clause challenge to the use of federal money for the construction of hospital buildings in the District of Columbia, was held to fall within this rule because it was appropriate to treat the District of Columbia as a municipality.7 Ibid. But the Court distinguished Mrs. Frothingham's action against the United States: 58 "[T]he relation of a taxpayer of the United States to the Federal Government is very different. His interest in the moneys of the Treasury—partly realized from taxation and partly from other sources—is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity. 59 "The administration of any statute, likely to produce additional taxation to be imposed upon a vast number of taxpayers, the extent of whose several liability is indefinite and constantly changing, is essentially a matter of public and not of individual concern." 262 U.S., at 487, 43 S.Ct., at 601. 60 After noting the importance of judicial restraint, the Court concluded: 61 "The party who invokes the [judicial] power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally." Id., at 488, 43 S.Ct., at 601. 62 Frothingham § reasoning remains obscure.8 The principal interpretive difficulty lies in the manner in which Frothingham chose to blend the language of policy with seemingly absolute statements about jurisdiction. For example, the Court commented with significance on the sheer number of taxpayers who might have raised a claim similar to that of Mrs. Frothingham. Id., at 487, 43 S.Ct., at 601. Yet it can hardly be argued that the Constitution bars from federal court a plaintiff who has suffered injury merely because others are similarly aggrieved. "[S]tanding is not to be denied simply because many people suffer the same injury." United States v. SCRAP, 412 U.S. 669, 687, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1973). And it is equally clear that the Constitution draws no distinction between injuries that are large, and those that are comparatively small. The line between more dollars and less is no valid constitutional measure. Cf. Everson v. Board of Education, 330 U.S. 1, 48-49, 67 S.Ct. 504, 527, 91 L.Ed. 711 (1947) (Rutledge, J., dissenting). The only distinction that a Constitution guaranteeing justice to all can recognize is one between some injury and none at all.9 63 Frothingham also stressed the indirectness of the taxpayer's injury. But, as a matter of Art. III standing, if the causal relationship is sufficiently certain, the length of the causal chain is irrelevant.10 See Warth v. Seldin, 422 U.S., at 505, 95 S.Ct., at 2208. The financial stake of a federal taxpayer in the outcome of a lawsuit challenging an allegedly unlawful federal expenditure is not qualitatively different from that of a state or a municipal taxpayer attacking a local expenditure. More importantly, the injury suffered by a taxpayer is not dependent on the extent of his tax payment. The concept of taxpayer injury necessarily recognizes the continuing stake of the taxpayer in the disposition of the Treasury to which he has contributed his taxes, and his right to have those funds put to lawful uses. Until Frothingham there was nothing in our precedents to indicate that this concept, so comfortably applied to municipal taxpayers, was inconsistent with the framework of rights and remedies established by the Federal Constitution. 64 The explanation for the limit on federal taxpayer "standing" imposed by Frothingham must be sought in more substantive realms. Justice Harlan, dissenting in Flast, came close to identifying what I consider the unstated premise of the Frothingham rule: 65 "[The] taxpayer's complaint can consist only of an allegation that public funds have been, or shortly will be, expended for purposes inconsistent with the Constitution. The taxpayer cannot ask the return of any portion of his previous tax payments, cannot prevent the collection of any existing tax debt, and cannot demand an adjudication of the propriety of any particular level of taxation. His tax payments are received for the general purposes of the United States, and are, upon proper receipt, lost in the general revenues." 392 U.S., at 128, 88 S.Ct., at 1967. 66 In a similar vein, the Government argued in Flast that taxpayer suits involve only a disagreement by the taxpayer with the uses to which tax revenues were committed, and that the resolution of such disagreements is entrusted to branches of the Federal Government other than the judiciary. Id., at 98, 88 S.Ct., at 1951. The arguments of both the Government and Justice Harlan are phrased, as they must be, not in the language of "standing," but of "legal rights" and "justiciable issues." 67 The Frothingham rule may be seen as founded solely on the prudential judgment by the Court that precipitate and unnecessary interference in the activities of a coequal branch of government should be avoided. Alternatively, Frothingham may be construed as resting upon an unarticulated, constitutionally established barrier between Congress' power to tax and its power to spend, which barrier makes it analytically impossible to mount an assault on the former through a challenge to the latter. But it is sufficient for present purposes to say thatFrothingham held that the federal taxpayer has no continuing legal interest in the affairs of the Treasury analogous to a shareholder's continuing interest in the conduct of a corporation. 68 Whatever its provenance, the general rule of Frothingham displays sound judgment: Courts must be circumspect in dealing with the taxing power in order to avoid unnecessary intrusion into the functions of the Legislative and Executive Branches. Congress' purpose in taxing will not ordinarily affect the validity of the tax. Unless the tax operates unconstitutionally, see, e.g., Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943), the taxpayer may not object to the use of his funds. Mrs. Frothingham's argument, that the use of tax funds for purposes unauthorized by the Constitution amounted to a violation of due process, did not provide her with the required legal interest because the Due Process Clause of the Fifth Amendment does not protect taxpayers against increases in tax liability. See Flast v. Cohen, 392 U.S., at 105, 88 S.Ct., at 1955. Mrs. Frothingham's claim was thus reduced to an assertion of "the States' interest in their legislative prerogatives," ibid., a third-party claim that could properly be barred.11 But in Flast the Court faced a different sort of constitutional claim, and found itself compelled to retreat from the general assertion in Frothingham that taxpayers have no interest in the disposition of their tax payments. To understand why Frothingham's bar necessarily gave way in the face of an Establishment Clause claim, we must examine the right asserted by a taxpayer making such a claim. B 69 In 1947, nine Justices of this Court recognized that the Establishment Clause does impose a very definite restriction on the power to tax.12 The Court held in Everson v. Board of Education, 330 U.S., at 15, 67 S.Ct., at 511, that the " 'establishment of religion' clause of the First Amendment means at least this:" "No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt, to teach or practice religion." Id., at 16, 67 S.Ct., at 511. 70 The Members of the Court could not have been more explicit. "One of our basic rights is to be free of taxation to support a transgression of the constitutional command that the authorities 'shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.' " Id., at 22, 67 S.Ct., at 514 (Jackson, J., dissenting). "[A]part from efforts to inject religious training or exercises and sectarian issues into the public schools, the only serious threat to maintaining that complete and permanent separation of religion and civil power which the First Amendment commands is through the use of the taxing power to support religion, religious establishments, or establishments having a religious foundation whatever their form or special religious function. . . . [M]oney taken by taxation from one is not to be used or given to support another's religious training or belief, or indeed one's own." Id., at 44, 67 S.Ct., at 525 (Rutledge J., dissenting). 71 In determining whether the law challenged in Everson was one "respecting an establishment of religion," the Court did not fail to examine the historic meaning of the constitutional language, "particularly with respect to the imposition of taxes." Id., at 8, 67 S.Ct., at 508. For as Justice Rutledge pointed out in his dissent: "No provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment. It is at once the refined product and the terse summation of that history." Id., at 33, 67 S.Ct., at 520. That history bears a brief repetition in the present context. 72 Many of the early settlers of this Nation came here to escape the tyranny of laws that compelled the support of government-sponsored churches and that inflicted punishments for the failure to pay establishment taxes and tithes. Id., at 8-9, 67 S.Ct., at 507-508. But the inhabitants of the various Colonies soon displayed a capacity to recreate the oppressive practices of the countries that they had fled. Once again persons of minority faiths were persecuted, and again such persons were subjected—this time by the colonial governments—to tithes and taxes for support of religion. Id., at 10, and n. 8, 67 S.Ct., at 509, and n. 8; Reynolds v. United States, 98 U.S. 145, 162-163, 25 L.Ed. 244 (1879). 73 "These practices became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence. The imposition of taxes to pay ministers' salaries and to build and maintain churches and church property aroused their indignation. It was these feelings which found expression in the First Amendment." Everson, supra, at 11, 67 S.Ct., at 509 (footnotes omitted). 74 In 1784-1785, before the adoption of the Constitution, the continuing conflict between those who saw state aid to religion as but the natural expression of "commonly shared" religious sentiments, and those who saw such support as a threat to the very notion of civil government, culminated in the battle fought in the Virginia House of Delegates over "a bill establishing provision for teachers of the Christian religion."13 Reynolds, supra, 98 U.S., at 162-163. The introduction of that bill in the state assembly prompted James Madison to prepare and circulate his famous "Memorial and Remonstrance Against Religious Assessments," imploring the legislature to establish and maintain the complete separation of religion and civil authority, and thus to reject the bill. In the end, the bill was rejected by the Virginia Legislature, and in its place Madison succeeded in securing the enactment of "A Bill for Establishing Religious Freedom," first introduced in the Virginia General Assembly seven years earlier by Thomas Jefferson. 98 U.S., at 163; Everson, 330 U.S., at 11-13, 67 S.Ct., at 509-510 (majority opinion); id., at 35-40, 67 S.Ct., at 521-523 (Rutledge, J., dissenting). Because Madison and Jefferson played such leading roles in the events leading to the adoption of the First Amendment, the Everson opinions did not hesitate to reproduce the partial text of their Virginia bill as a primary source for understanding the objectives, and protections, afforded by the more concise phrasing of the Establishment Clause. Everson, supra, at 12-13, 28, 67 S.Ct., at 509-510, 517; see Reynolds, supra, 98 U.S., at 163-164. Extracts from that bill also bear repeating in the present context. The preamble provided, in part: 75 "[T]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern." 12 Hening's Stat. 85. 76 Its operative language emphatically stated: 77 "That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief. . . ." Id., at 86.14 78 Justice Rutledge summed up Madison's views in the following terms: 79 "In no phase was he more unrelentingly absolute than in opposing state support or aid by taxation. Not even 'three pence' contribution was thus to be exacted from any citizen for such a purpose. Tithes had been the life-blood of establishment before and after other compulsions disappeared. Madison and his coworkers made no exceptions or abridgments to the complete separation [between church and state] they created. Their objection was not to small tithes. It was to any tithes whatsoever. 'If it were lawful to impose a small tax for religion, the admission would pave the way for oppressive levies.' Not the amount, but 'the principle of the assessment was wrong.' " Everson, supra, at 40-41, 67 S.Ct., at 523-524 (citation omitted). 80 It is clear, in the light of this history, that one of the primary purposes of the Establishment Clause was to prevent the use of tax moneys for religious purposes. The taxpayer was the direct and intended beneficiary of the prohibition on financial aid to religion.15 This basic understanding of the meaning of the Establishment Clause explains why the Court in Everson, while rejecting appellant's claim on the merits, perceived the issue presented there as it did. The appellant sued "in his capacity as a district taxpayer," 330 U.S., at 3, 67 S.Ct., at 505, challenging the actions of the Board of Education in passing a resolution providing reimbursement to parents for the cost of transporting their children to parochial schools, and seeking to have that resolution "set aside." Appellant's Establishment Clause claim was precisely that the "statute . . . forced inhabitants to pay taxes to help support and maintain" church schools. Id., at 5, 67 S.Ct., at 506. It seems obvious that all the Justices who participated in Everson would have agreed with Justice Jackson's succinct statement of the question presented: "Is it constitutional to tax this complainant to pay the cost of carrying pupils to Church schools of one specified denomination?" Id., at 21, 67 S.Ct., at 514 (dissenting opinion). Given this view of the issues, could it fairly be doubted that this taxpayer alleged injury in precisely the form that the Establishment Clause sought to make actionable?16 C 81 In Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), federal taxpayers sought to challenge the Department of Health, Education, and Welfare's administration of the Elementary and Secondary Education Act of 1965: specifically the Department's practice of allowing funds distributed under that Act to be used to finance instruction in religious schools. Appellants urged that the use of federal funds for such a purpose violated the Establishment and Free Exercise Clauses of the First Amendment, and sought a declaration that this use of federal funds was not authorized by the Act, or that to the extent the use was authorized, the Act was "unconstitutional and void." Appellants further sought an injunction to bar appellees from approving any expenditure of funds for the allegedly unconstitutional purposes. Id., at 86-88, 88 S.Ct., at 1945-1946. The Frothingham rule stood as a seemingly absolute barrier to the maintenance of the claim. The Court held, however, that the Frothingham barrier could be overcome by any claim that met both requirements of a two-part "nexus" test. 82 The Justices who participated in Flast were not unaware of the Court's continued recognition of a federally cognizable "case or controversy" when a local taxpayer seeks to challenge as unconstitutional the use of a municipality's funds— the propriety of which had, of course, gone unquestioned in Everson.17 The Court was aware as well of the rule stated in Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952), that the interest of a taxpayer, even one raising an Establishment Clause claim, was limited to the actions of a government involving the expenditure of funds. But in reaching its holding, it is also quite clear that the Court was responding, not only to Everson § continued acceptance of municipal taxpayer actions but also to Everson § exposition of the history and meaning of the Establishment Clause. See Flast, supra, 392 U.S., at 103-104, 88 S.Ct., at 1954. 83 It is at once apparent that the test of standing formulated by the Court in Flast sought to reconcile the developing doctrine of taxpayer "standing" with the Court's historical understanding that the Establishment Clause was intended to prohibit the Federal Government from using tax funds for the advancement of religion, and thus the constitutional imperative of taxpayer standing in certain cases brought pursuant to the Establishment Clause. The two-pronged "nexus" test offered by the Court, despite its general language,18 is best understood as "a determinant of standing of plaintiffs alleging only injury as taxpayers who challenge alleged violations of the Establishment and Free Exercise Clauses of the First Amendment," and not as a general statement of standing principles. Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 238, 94 S.Ct. 2925, 2963, 41 L.Ed.2d 706 (1974) (BRENNAN, J., dissenting); Flast, 392 U.S., at 102, 88 S.Ct., at 1953. The test explains what forms of governmental action may be attacked by someone alleging only taxpayer status, and, without ruling out the possibility that history might reveal another similarly founded provision, explains why an Establishment Clause claim is treated differently from any other assertion that the Federal Government has exceeded the bounds of the law in allocating its largesse. Thus, consistent with Doremus, Flast required, as the first prong of its test, that the taxpayer demonstrate a logical connection between his taxpayer status and the type of legislation attacked. Flast, supra, at 102, 88 S.Ct., at 1953. Appellants' challenge to a program of grants to educational institutions clearly satisfied this first requirement. 392 U.S., at 103, 88 S.Ct., at 1954. As the second prong, consistent with the prohibition of taxpayer claims of the kind advanced in Frothingham, appellants were required to show a connection between their status and the precise nature of the infringement alleged. Flast, 392 U.S., at 102, 88 S.Ct., at 1953. They had no difficulty meeting this requirement: the Court agreed that the Establishment Clause jealously protects taxpayers from diversion of their funds to the support of religion through the offices of the Federal Government. Id., at 103-104, 88 S.Ct., at 1954. 84 The nexus test that the Court "announced," id., at 102-103, 88 S.Ct., at 1953-1954, sought to maintain necessary continuity with prior cases, and set forth principles to guide future cases involving taxpayer standing. But Flast did not depart from the principle that no judgment about standing should be made without a fundamental understanding of the rights at issue. Id., at 102, 88 S.Ct., at 1953. The two-part Flast test did not supply the rationale for the Court's decision, but rather its exposition: That rationale was supplied by an understanding of the nature of the restrictions on government power imposed by the Constitution and the intended beneficiaries of those restrictions. 85 It may be that Congress can tax for almost any reason, or for no reason at all. There is, so far as I have been able to discern, but one constitutionally imposed limit on that authority. Congress cannot use tax money to support a church, or to encourage religion. That is "the forbidden exaction." Everson v. Board of Education, 330 U.S., at 45, 67 S.Ct., at 526 (Rutledge, J., dissenting) (emphasis added). See Flast, supra, 392 U.S., at 115-116, 88 S.Ct., at 1960 (Fortas, J., concurring). In absolute terms the history of the Establishment Clause of the First Amendment makes this clear. History also makes it clear that the federal taxpayer is a singularly "proper and appropriate party to invoke a federal court's jurisdiction" to challenge a federal bestowal of largesse as a violation of the Establishment Clause. Each, and indeed every, federal taxpayer suffers precisely the injury that the Establishment Clause guards against when the Federal Government directs that funds be taken from the pocketbooks of the citizenry and placed into the coffers of the ministry. 86 A taxpayer cannot be asked to raise his objection to such use of his funds at the time he pays his tax. Apart from the unlikely circumstance in which the Government announced in advance that a particular levy would be used for religious subsidies, taxpayers could hardly assert that they were being injured until the Government actually lent its support to a religious venture. Nor would it be reasonable to require him to address his claim to those officials charged with the collection of federal taxes. Those officials would be without the means to provide appropriate redress—there is no practical way to segregate the complaining taxpayer's money from that being devoted to the religious purpose. Surely, then, a taxpayer must have standing at the time that he learns of the Government's alleged Establishment Clause violation to seek equitable relief in order to halt the continuing and intolerable burden on his pocketbook, his conscience, and his constitutional rights. III 87 Blind to history, the Court attempts to distinguish this case from Flast by wrenching snippets of language from our opinions, and by perfunctorily applying that language under color of the first prong of Flast § two-part nexus test. The tortuous distinctions thus produced are specious, at best: at worst, they are pernicious to our constitutional heritage. 88 First, the Court finds this case different from Flast because here the "source of [plaintiffs'] complaint is not a congressional action, but a decision by HEW to transfer a parcel of federal property." Ante, at 479 (emphasis added). This attempt at distinction cannot withstand scrutiny. Flast involved a challenge to the actions of the Commissioner of Education, and other officials of HEW, in disbursing funds under the Elementary and Secondary Education Act of 1965 to "religious and sectarian" schools. Plaintiffs disclaimed "any intent[ion] to challenge . . . all programs under . . . the Act." Flast, supra, at 87, 88 S.Ct., at 1946. Rather, they claimed that defendant-administrators' approval of such expenditures was not authorized by the Act, or alternatively, to the extent the expenditures were authorized, the Act was "unconstitutional and void." Ibid. In the present case, respondents challenge HEW's grant of property pursuant to the Federal Property and Administrative Services Act of 1949, seeking to enjoin HEW "from making a grant of this and other property to the [defendant] so long as such a grant will violate the Establishment Clause." App. 12. It may be that the Court is concerned with the adequacy of respondents' pleading; respondents have not, in so many words, asked for a declaration that the "Federal Property and Administrative Services Act is unconstitutional and void to the extent that it authorizes HEW's actions." I would not construe their complaint so narrowly. 89 More fundamentally, no clear division can be drawn in this context between actions of the Legislative Branch and those of the Executive Branch. To be sure, the First Amendment is phrased as a restriction on Congress' legislative authority; this is only natural since the Constitution assigns the authority to legislate and appropriate only to the Congress. But it is difficult to conceive of an expenditure for which the last governmental actor, either implementing directly the legislative will, or acting within the scope of legislatively delegated authority, is not an Executive Branch official. The First Amendment binds the Government as a whole, regardless of which branch is at work in a particular instance. 90 The Court's second purported distinction between this case and Flast is equally unavailing. The majority finds it "decisive" that the Federal Property and Administrative Services Act of 1949 "was an evident exercise of Congress' power under the Property Clause, Art. IV, § 3, cl. 2," ante, at 480, while the Government action in Flast was taken under Art. I, § 8. The Court relies on United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974), and Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974), to support the distinction between the two Clauses, noting that those cases involved alleged deviations from the requirements of Art. I, § 9, cl. 7, and Art. I, § 6, cl. 2, respectively. The standing defect in each case was not, however, the failure to allege a violation of the Spending Clause; rather, the taxpayers in those cases had not complained of the distribution of Government largesse, and thus failed to meet the essential requirement of taxpayer standing recognized in Doremus. 91 It can make no constitutional difference in the case before us whether the donation to the petitioner here was in the form of a cash grant to build a facility, see Tilton v. Richard- son, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971), or in the nature of a gift of property including a facility already built. That this is a meaningless distinction is illustrated by Tilton. In that case, taxpayers were afforded standing to object to the fact that the Government had not received adequate assurance that if the property that it financed for use as an educational facility was later converted to religious uses, it would receive full value for the property, as the Constitution requires. The complaint here is precisely that, although the property at issue is actually being used for a sectarian purpose, the Government has not received, nor demanded, full value payment.19 Whether undertaken pursuant to the Property Clause or the Spending Clause, the breach of the Establishment Clause, and the relationship of the taxpayer to that breach, is precisely the same.20 IV 92 Plainly hostile to the Framers' understanding of the Establishment Clause, and Flast § enforcement of that understanding, the Court vents that hostility under the guise of standing, "to slam the courthouse door against plaintiffs who [as the Framers intended] are entitled to full consideration of their [Establishment Clause] claims on the merits." Barlow v. Collins, 397 U.S. 159, 178, 90 S.Ct. 832, 844, 25 L.Ed.2d 192 (1970) (BRENNAN, J., concurring in result and dissenting). Therefore, I dissent. 93 Justice STEVENS, dissenting. 94 In Parts I, II, and III of his dissenting opinion, Justice BRENNAN demonstrates that respondent taxpayers have standing to mount an Establishment Clause challenge against the Federal Government's transfer of property worth $1,300,000 to the Assemblies of God. For the Court to hold that plaintiffs' standing depends on whether the Government's transfer was an exercise of its power to spend money, on the one hand, or its power to dispose of tangible property, on the other, is to trivialize the standing doctrine. 95 One cannot read the Court's opinion and the concurring opinions of Justice Stewart and Justice Fortas in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947, without forming the firm conclusion that the plaintiffs' invocation of the Establishment Clause was of decisive importance in resolving the standing issue in that case. Justice Fortas made this point directly: 96 "I agree that the congressional powers to tax and spend are limited by the prohibition upon Congress to enact laws 'respecting an establishment of religion.' This thesis, slender as its basis is, provides a direct 'nexus,' as the Court puts it, between the use and collection of taxes and the congressional action here. Because of this unique 'nexus,' in my judgment, it is not far-fetched to recognize that a taxpayer has a special claim to status as a litigant in a case raising the 'establishment' issue. This special claim is enough, I think, to permit us to allow the suit, coupled, as it is, with the interest which the taxpayer and all other citizens have in the church-state issue. In terms of the structure and basic philosophy of our constitutional government, it would be difficult to point to any issue that has a more intimate, pervasive, and fundamental impact upon the life of the taxpayer—and upon the life of all citizens. 97 "Perhaps the vital interest of a citizen in the establishment issue, without reference to his taxpayer's status, would be acceptable as a basis for this challenge. We need not decide this. But certainly, I believe, we must recognize that our principle of judicial scrutiny of legislative acts which raise important constitutional questions requires that the issue here presented—the separation of state and church—which the Founding Fathers regarded as fundamental to our constitutional system—should be subjected to judicial testing. This is not a question which we, if we are to be faithful to our trust, should consign to limbo, unacknowledged, unresolved, and undecided. 98 "On the other hand, the urgent necessities of this case and the precarious opening through which we find our way to confront it, do not demand that we open the door to a general assault upon exercises of the spending power. The status of taxpayer should not be accepted as a launching pad for an attack upon any target other than legislation affecting the Establishment Clause." Id., at 115-116, 88 S.Ct., at 1960-1961. 99 Today the Court holds, in effect, that the Judiciary has no greater role in enforcing the Establishment Clause than in enforcing other "norm[s] of conduct which the Federal Government is bound to honor," ante, at 484, such as the Accounts Clause, United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678, and the Incompatibility Clause, Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706. Ironically, however, its decision rests on the premise that the difference between a disposition of funds pursuant to the Spending Clause and a disposition of realty pursuant to the Property Clause is of fundamental jurisprudential significance. With all due respect, I am persuaded that the essential holding of Flast v. Cohen attaches special importance to the Establishment Clause and does not permit the drawing of a tenuous distinction between the Spending Clause and the Property Clause. 100 For this reason, and for the reasons stated in Parts I, II, and III of Justice BRENNAN's opinion, I would affirm the judgment of the Court of Appeals. 1 The Act defines "excess property" as "property under the control of any Federal agency which is not required for its needs and the discharge of its responsibilities." 63 Stat. 378, 40 U.S.C. § 472(e). 2 The Act defines "surplus property" as "any excess property not required for the needs and the discharge of the responsibilities of all Federal agencies, as determined by the Administrator [of General Services]." 63 Stat. 379, 40 U.S.C. § 472(g). 3 See 20 U.S.C. §§ 3411, 3441(a)(2)(P) (1976 ed., Supp.III). 4 The property is to "be awarded to the applicant having a program of utilization which provides, in the opinion of the Department [of Education], the greatest public benefit." 34 CFR § 12.5 (1980). Applicants must be willing and able to assume immediate responsibility for the property and must demonstrate the financial capacity to implement the approved program of educational use. § 12.8(b). 5 In calculating the public benefit allowance, the Secretary considers factors such as the applicant's educational accreditation, sponsorship of public service training, plans to introduce new instructional programs, commitment to student health and welfare, research, and service to the handicapped. 34 CFR pt. 12, Exh. A (1980). 6 The remaining property was conveyed to local school districts for educational purposes or set aside for park and recreational use. At the time of the conveyance, petitioner was known as the Northeast Bible College. 7 The appraiser placed no value on the buildings and fixtures situated on the tract. The buildings had been constructed for use as an Army hospital and, in his view, the expense necessary to render them useful for other purposes would have offset the value of such an endeavor. 8 "Congress shall make no law respecting an establishment of religion. . . ." 9 See Watt v. Energy Action Educational Foundation, 454 U.S. 151, 161, 102 S.Ct. 205, 212, 70 L.Ed.2d 309 (1981); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2629, 57 L.Ed.2d 595 (1978); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261, 262, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977); Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975); Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 218, 220-221, 94 S.Ct. 2925, 2930, 2931-2932, 41 L.Ed.2d 706 (1974); United States v. Richardson, 418 U.S. 166, 179-180, 94 S.Ct. 2940, 2947-2948, 41 L.Ed.2d 678 (1974); O'Shea v. Littleton, 414 U.S. 488, 493, 94 S.Ct. 669, 674, 38 L.Ed.2d 674 (1974); Linda R.S. v. Richard D., 410 U.S. 614, 617-618, 93 S.Ct. 1146, 1148-1149, 35 L.Ed.2d 536 (1973). 10 See Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979); Duke Power Co. v. Carolina Environmental Study Group, Inc., supra, at 80, 98 S.Ct., at 2634; Singleton v. Wulff, 428 U.S. 106, 113-114, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). 11 See Gladstone, Realtors v. Village of Bellwood, supra, 441 U.S., at 100, 99 S.Ct., at 1608; Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S., at 80, 98 S.Ct., at 2634. 12 See Gladstone, Realtors v. Village of Bellwood, supra, 441 U.S., at 100, n. 6, 99 S.Ct., at 1608 n. 6; Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39, n. 19, 96 S.Ct. 1917, 1925, n. 19, 48 L.Ed.2d 450 (1976). 13 Justice BRENNAN's dissent takes us to task for "tend[ing] merely to obfuscate, rather than inform, our understanding of the meaning of rights under the law." Post, at 490. Were this Court constituted to operate a national classroom on "the meaning of rights" for the benefit of interested litigants, this criticism would carry weight. The teaching of Art. III, however, is that constitutional adjudication is available only on terms prescribed by the Constitution, among which is the requirement of a plaintiff with standing to sue. The dissent asserts that this requirement "overrides no other provision of the Constitution," post, at 493, but just as surely the Art. III power of the federal courts does not wax and wane in harmony with a litigant's desire for a "hospitable forum," post, at 494. Article III obligates a federal court to act only when it is assured of the power to do so, that is, when it is called upon to resolve an actual case or controversy. Then, and only then, may it turn its attention to other constitutional provisions and presume to provide a forum for the adjudication of rights. See Ashwander v. TVA, 297 U.S. 288, 345, 56 S.Ct. 466, 482, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). 14 Respondent Americans United has alleged no injury to itself as an organization, distinct from injury to its taxpayer members. As a result, its claim to standing can be no different from those of the members it seeks to represent. The question is whether "its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit." Warth v. Seldin, 422 U.S., at 511, 95 S.Ct., at 2211. See Simon v. Eastern Kentucky Welfare Rights Org., supra, 426 U.S., at 40, 96 S.Ct., at 1925; Sierra Club v. Morton, 405 U.S. 727, 739-741, 92 S.Ct. 1361, 1368-1369, 31 L.Ed.2d 636 (1972). 15 Respondents do not challenge the constitutionality of the Federal Property and Administrative Services Act itself, but rather a particular Executive Branch action arguably authorized by the Act. 16 The Act was designed "to simplify the procurement, utilization, and disposal of Government property" in order to achieve an "efficient, businesslike system of property management." S.Rep. No. 475, 81st Cong., 1st Sess., 1 (1949). See H.R.Rep. No. 670, 81st Cong., 1st Sess., 1-2 (1949). Among the central purposes of the Act was the "maximum utilization of property already owned by the Government and minimum purchasing of new property." S.Rep. No. 475, supra, at 4. Congress recognized, however, that from time to time certain property would become surplus to the Government, and in particular, property acquired by the military to meet wartime contingencies. Congress provided a means of disposing of this property to meet well-recognized public priorities, including education. See S.Rep. No. 475, supra, at 4-5; H.R.Rep. No. 670, supra, at 5-6. 17 Although not necessary to our decision, we note that any connection between the challenged property transfer and respondents' tax burden is at best speculative and at worst nonexistent. Although public funds were expended to establish the Valley Forge General Hospital, the land was acquired and the facilities constructed 30 years prior to the challenged transfer. Respondents do not challenge this expenditure, and we do not immediately perceive how such a challenge might now be raised. Nor do respondents dispute the Government's conclusion that the property has become useless for federal purposes and ought to be disposed of in some productive manner. In fact, respondents' only objection is that the Government did not receive adequate consideration for the transfer, because petitioner's use of the property will not confer a public benefit. See Brief for Respondents Americans United et al. 13. Assuming, arguendo, that this proposition is true, an assumption by no means clear, there is no basis for believing that a transfer to a different purchaser would have added to Government receipts. As the Government argues, "the ultimate purchaser would, in all likelihood, have been another non-profit institution or local school district rather than a purchaser for cash." Brief for Federal Respondents 30. Moreover, each year of delay in disposing of the property depleted the Treasury by the amounts necessary to maintain a facility that had lost its value to the Government. Even if respondents had brought their claim within the outer limits of Flast, therefore, they still would have encountered serious difficulty in establishing that they "personally would benefit in a tangible way from the court's intervention." Warth v. Seldin, 422 U.S., at 508, 95 S.Ct., at 2210. 18 U.S.Const., Art. I, § 9, cl. 7 ("[A]nd a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time"). 19 U.S.Const., Art. I, § 6, cl. 2 ("[N]o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office"). 20 Justice BRENNAN's dissent is premised on a revisionist reading of our precedents which leads to the conclusion that the Art. III requirement of standing is satisfied by any taxpayer who contends "that the Federal Government has exceeded the bounds of the law in allocating its largesse," post, at 508. "The concept of taxpayer injury necessarily recognizes the continuing stake of the taxpayer in the disposition of the Treasury to which he has contributed his taxes, and his right to have those funds put to lawful uses." Post, at 497-498. On this novel understanding, the dissent reads cases such as Frothingham and Flast as decisions on the merits of the taxpayers' claims. Frothingham is explained as a holding that a taxpayer ordinarily has no legal right to challenge congressional expenditures. Post, at 499. The dissent divines from Flast the holding that a taxpayer does have an enforceable right "to challenge a federal bestowal of largesse" for religious purposes. Post, at 509. This right extends to "the Government as a whole, regardless of which branch is at work in a particular instance," post, at 511, and regardless of whether the challenged action was an exercise of the spending power, post, at 512. However appealing this reconstruction of precedent may be, it bears little resemblance to the cases on which it purports to rest. Frothingham and Flast were decisions that plainly turned on standing, and just as plainly they rejected any notion that the Art. III requirement of direct injury is satisfied by a taxpayer who contends "that the Federal Government has exceeded the bounds of the law in allocating its largesse." Post, at 508. Moreover, although the dissent's view may lead to a result satisfying to many in this case, it is not evident how its substitution of "legal interest," post, at 499, for "standing" enhances "our understanding of the meaning of rights under law," post, at 490. Logically, the dissent must shoulder the burden of explaining why taxpayers with standing have no "legal interest" in congressional expenditures except when it is possible to allege a violation of the Establishment Clause: yet it does not attempt to do so. Nor does the dissent's interpretation of standing adequately explain cases such as Schlesinger and Richardson. According to the dissent, the taxpayer plaintiffs in those cases lacked standing, not because they failed to challenge an exercise of the spending power, but because they did not complain of "the distribution of Government largesse." Post, at 511. And yet if the standing of a taxpayer is established by his "continuing stake . . . in the disposition of the Treasury to which he has contributed his taxes," post, at 497-498, it would seem to follow that he can assert a right to examine the budget of the CIA, as in Richardson, see 418 U.S., at 170, 94 S.Ct., at 2943, and a right to argue that Members of Congress cannot claim Reserve pay from the Government, as in Schlesinger, see 418 U.S., at 211, 94 S.Ct., at 2927. Of course, both claims have been rejected, precisely because Art. III requires a demonstration of redressable injury that is not satisfied by a claim that tax moneys have been spent unlawfully. 21 In Schlesinger, we rejected the argument that standing should be recognized because "the adverse parties sharply conflicted in their interests and views and were supported by able briefs and arguments." 418 U.S., at 225, 94 S.Ct., at 2934: "We have no doubt about the sincerity of respondents' stated objectives and the depth of their commitment to them. But the essence of standing 'is not a question of motivation but of possession of the requisite . . . interest that is, or is threatened to be, injured by the unconstitutional conduct.' Doremus v. Board of Education, 342 U.S. 429, 435 [72 S.Ct. 394, 397, 96 L.Ed. 475] (1952)." Id., at 225-226, 94 S.Ct., at 2934. 22 Respondents rely on our statement in Association of Data Processing Service Orgs. v. Camp, 397 U.S., at 154, 90 S.Ct., at 830, that "[a] person or family may have a spiritual stake in First Amendment values sufficient to give standing to raise issues concerning the Establishment Clause and the Free Exercise Clause. Abington School District v. Schempp, 374 U.S. 203 [83 S.Ct. 1560, 10 L.Ed.2d 844] [1963]." Respondents apparently construe this language to mean that any person asserting an Establishment Clause violation possesses a "spiritual stake" sufficient to confer standing. The language will not bear that weight. First, the language cannot be read apart from the context of its accompanying reference to Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). In Schempp, the Court invalidated laws that required Bible reading in the public schools. Plaintiffs were children who attended the schools in question, and their parents. The Court noted: "It goes without saying that the laws and practices involved here can be challenged only by persons having standing to complain. . . . The parties here are school children and their parents, who are directly affected by the laws and practices against which their complaints are directed. These interests surely suffice to give the parties standing to complain." Id., at 224, n. 9, 83 S.Ct., at 1572, n. 9. The Court also drew a comparison with Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952), in which the identical substantive issues were raised, but in which the appeal was "dismissed upon the graduation of the school child involved and because of the appellants' failure to establish standing as taxpayers." 374 U.S., at 224, n. 9, 83 S.Ct., at 1573, n. 9. The Court's discussion of the standing issue is not extensive, but it is sufficient to show the error in respondents' broad reading of the phrase "spiritual stake." The plaintiffs in Schempp had standing, not because their complaint rested on the Establishment Clause—for as Doremus demonstrated, that is insufficient—but because impressionable schoolchildren were subjected to unwelcome religious exercises or were forced to assume special burdens to avoid them. Respondents have alleged no comparable injury. 23 Respondent Americans United claims that it has certain unidentified members who reside in Pennsylvania. It does not explain, however, how this fact establishes a cognizable injury where none existed before. Respondent is still obligated to allege facts sufficient to establish that one or more of its members has suffered, or is threatened with, an injury other than their belief that the transfer violated the Constitution. 24 Respondents also claim standing by reference to the Administrative Procedure Act, 5 U.S.C. § 702, which authorizes judicial review at the instance of any person who has been "adversely affected or aggrieved by agency action within the meaning of a relevant statute." Neither the Administrative Procedure Act, nor any other congressional enactment, can lower the threshold requirements of standing under Art. III. See, e. g., Gladstone, Realtors v. Village of Bellwood, 441 U.S., at 100, 99 S.Ct., at 1608; Warth v. Seldin, 422 U.S., at 501, 95 S.Ct., at 2206. Respondents do not allege that the Act creates a legal right, "the invasion of which creates standing," Linda R.S. v. Richard D., 410 U.S., at 617, n. 3, 93 S.Ct., at 1148, n. 3, and there is no other basis for arguing that its existence alters the rules of standing otherwise applicable to this case. 25 The majority believed that the only thing which prevented this Court from openly acknowledging this position was the fact that the complaint in Flast had alleged no basis for standing other than the plaintiffs' taxpayer status. 619 F.2d, at 262. As the dissent below pointed out, this view is simply not in accord with the facts. See id., at 269-270. The Flast plaintiffs and several amici strongly urged the Court to adopt the same view of standing for which respondents argue in this case. The Court plainly chose not to do so. Even if respondents were correct in arguing that the Court in Flast was bound by a "perceived limitation in the pleadings," 619 F.2d, at 262, we are not so bound in this case, and we find no merit in respondents' vision of standing. 26 Were we to recognize standing premised on an "injury" consisting solely of an alleged violation of a " 'personal constitutional right' to a government that does not establish religion," id., at 265, a principled consistency would dictate recognition of respondents' standing to challenge execution of every capital sentence on the basis of a personal right to a government that does not impose cruel and unusual punishment, or standing to challenge every affirmative-action program on the basis of a personal right to a government that does not deny equal protection of the laws, to choose but two among as many possible examples as there are commands in the Constitution. 1 Barlow v. Collins, 397 U.S. 159, 178, 90 S.Ct. 832, 844, 25 L.Ed.2d 192 (1970) (BRENNAN, J., concurring in result and dissenting). 2 "Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute." Linda R. S. v. Richard D., 410 U.S. 614, 617, n. 3, 93 S.Ct. 1146, 1148, n. 3, 35 L.Ed.2d 536 (1973). The Framers of the Constitution, of course could, and did, exercise the same power. 3 Justice Frankfurter identified two sources to assist in the definitional inquiry concerning injury: "A litigant ordinarily has standing to challenge a governmental action of a sort that, if taken by a private person, would create a right of action cognizable by the courts. Or standing may be based on an interest created by the Constitution or a statute." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152, 71 S.Ct. 624, 638, 95 L.Ed. 817 (1951) (concurring opinion) (citations omitted). In identifying the types of injuries that might be recognized in private law actions as a basis for suits against the Government, Justice Frankfurter felt free to draw on principles of "common law." Id., at 152-153, 157-160, 71 S.Ct., at 638, 641-642. 4 Of course, we generally permit persons to press federal suits even when the injury complained of is not obviously within the realm of injuries that a particular statutory or constitutional provision was designed to guard against. We term that circumstance one of "third-party standing." In such situations, the Constitution requires us to determine whether the injury alleged is sufficiently "palpable" to fall within the contemplation of Art. III. If plaintiff has suffered injury in fact within the contemplation of Art. III, but is not obviously within the reach of the particular statutory or constitutional provision upon which the plaintiff founds his claim, we then bring prudential considerations to bear to determine whether the plaintiff should be allowed to maintain his action. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 80-81, 98 S.Ct. 2620, 2634, 57 L.Ed.2d 595 (1978). In evaluating a claim of "third-party standing," we are, by definition, without specific constitutional or congressional direction, and are thus free to draw upon a wisdom peculiarly judicial in character—to elaborate upon the meaning of constitutionally cognizable injury, and then to weigh considerations of policy along with gleanings of legislative and constitutional intent, in order to determine whether the plaintiff should be permitted to maintain his claim. With the understanding that "the basic practical and prudential concerns underlying the standing doctrine are generally satisfied when the constitutional requisites are met," id., at 81, 98 S.Ct., at 2634, we have only rarely interposed a bar to "third-party standing," particularly when constitutional violations are alleged. Indeed, the only firm exception to this generally permissive attitude toward third-party suits is the restriction on taxpayer suits. Id., at 79-81, 98 S.Ct., at 2633-2634. 5 When the Constitution makes it clear that a particular person is to be protected from a particular form of government action, then that person has a "right" to be free of that action; when that right is infringed, then there is injury, and a personal stake, within the meaning of Art. III. 6 As James Madison noted, if a bill of rights were "incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights." 1 Annals of Cong. 439 (1789). 7 As an attempt to afford a taxpayer living in the District of Columbia with the same rights as a taxpayer living in a municipality, the Court's treatment of Bradfield has some persuasive force. But if the ban on federal taxpayer standing had been considered to be of constitutional origin, no analogy could have sufficed to cure the jurisdictional defect. Appellant had not alleged that he was a taxpayer of the District of Columbia, but rather that he was a "citizen and taxpayer of the United States and a resident of the District of Columbia." 175 U.S., at 295, 20 S.Ct., at 122 (emphasis added). Although the court below deemed the suit to be against Ellis H. Roberts, not as Treasurer of the United States but as Treasurer of the District of Columbia, Roberts v. Bradfield, 12 App.D.C. 453, 459-460 (1898), standing plainly rested on appellant's federal taxpayer status. 8 The question apparently remains open whether Frothingham stated a prudential limitation or identified an Art. III barrier. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S., at 79, n. 25, 98 S.Ct., at 2633, n. 25; United States v. Richardson, 418 U.S. 166, 181, 196, n. 18, 94 S.Ct. 2940, 2948, 2956, n. 18, 41 L.Ed.2d 678 (1974) (POWELL, J., concurring). It was generally agreed at the time of Flast v. Cohen, 392 U.S. 83, 92, n. 6, 101, 88 S.Ct. 1942, 1948, n. 6, 1953, 20 L.Ed.2d 947 (1968), and clearly the view of Justice Harlan in dissent, id., at 130, 88 S.Ct., at 1968, that the rule stated reflected prudential and policy considerations, not constitutional limitations. Perhaps the case is most usefully understood as a "substantive" declaration of the legal rights of a taxpayer with respect to Government spending, coupled with a prudential restriction on the taxpayer's ability to raise the claims of third parties. Under any construction, however, Frothingham must give way to a taxpayer's suit brought under the Establishment Clause. 9 Indeed, as noted in Flast, supra, at 94, 88 S.Ct., at 1949, the stake in the federal Treasury of major corporate taxpayers was not in any sense trivial. Indeed there was a time when a federal program involving an expenditure from the Treasury of $10 billion would very likely result in an increase of $150 million in the tax bill of a major corporation such as General Motors. See Hearings on S. 2097 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 89th Cong., 2nd Sess., pt. 2, p. 493 (1966) (letter from K. C. Davis to Sen. Sam Ervin); Note, 69 Yale L.J. 895, 917, n. 127 (1960). 10 Even if actual impact on the taxpayer's pocketbook were deemed the test of taxpayer standing, the cases in which a tenuous causal connection between the injury alleged and the challenged action formed the basis for denying plaintiffs standing do not control the case of a taxpayer challenging a Government expenditure. Compare Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Linda R. S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973); with Duke Power Co. v. Carolina Environmental Study Group, Inc., supra; and United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). Frothingham's obstacle was not an inability to show that the alleged injury was "likely to be redressed by a favorable decision." Simon, 426 U.S., at 38, 96 S.Ct., at 1924. In each of the above-cited cases in which standing was denied, the difficulty was that an intermediate link in the causal chain—a third party beyond the control of the court—might serve to bar effective relief. Even if the court acceded to plaintiffs' view of the law, the court's decree might prove ineffectual to relieve plaintiffs' injury because of the independent action of some third party. See 426 U.S., at 41-42, 96 S.Ct., at 1925-1926; Warth v. Seldin, supra, at 505-507, 95 S.Ct., at 2208-2209. The situation of the taxpayer is not comparable because there is no problem of intervening cause. The defendant has the full power to correct the plaintiff's difficulty and, if the court concludes that as a matter of law and fact plaintiff is indeed required to provide defendant redress, it has the power to provide relief. The factual aspect of the causal connection is sure. 11 With respect to the enforcement of constitutional restrictions, we have not been overly elegant in defining the class of persons who may object to particular forms of government action. Only the constitutional minimum of injury in fact has been required. As the Court recently noted: "We . . . 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." Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S., at 79, 98 S.Ct., at 2633. See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 225 n. 15, 94 S.Ct. 2925, 2934, n. 15, 41 L.Ed.2d 706 (1974). Nevertheless, I do not suggest that the Frothingham limitation on federal taxpayer suits should be abandoned. The barrier it evinces between the taxing power and the spending power, whether it be deemed one of constitutional construction or judicial prudence, reflects fundamental conceptions about the nature of the legislative process, and is, in any event, now firmly embedded in our cases. That barrier is necessarily pierced, however, by an Establishment Clause claim. 12 Justice Black, joined by Chief Justice Vinson, and Justices Reed, Douglas, and Murphy, wrote for the majority and concluded that the challenged activity was not a support of religion; Justice Jackson wrote one dissent joined in by Justice Frankfurter; Justice Rutledge also authored a dissent, in which Justices Jackson, Frankfurter, and Burton joined. Both dissents clearly affirmed this constitutional restriction on the power to tax. 330 U.S., at 22, 33, 67 S.Ct., at 514, 520. 13 The bill, and Madison's Remonstrance, are both appended to the dissenting opinion of Justice Rutledge in Everson. Id., at 63-74, 67 S.Ct., at 534-539. 14 Although the bill is in some sense merely the pronouncement of a small legislative body, its proscription was intended to transcend temporal bounds. The enactment concludes: "And though we well know that this Assembly, enacted by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding assemblies, constituted with powers equal to our own, and that therefore to declare this act to be irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act will be an infringement of natural right." 12 Hening's Stat. 86. By incorporation of its principles in the Bill of Rights, the bill was transformed from mere hortatory expression, into a guarantee of lasting and binding rights against the Government. 15 The position of a taxpayer with respect to a Government grant of a tax exemption to a religious institution is qualitatively different from the position of a taxpayer objecting to a subsidy. "A subsidy involves the direct transfer of public monies to the subsidized enterprise and uses resources exacted from taxpayers as a whole. An exemption, on the other hand, involves no such transfer. It assists the exempted enterprise only passively, by relieving a privately funded venture of the burden of paying taxes. In other words, '[i]n the case of direct subsidy, the state forcibly diverts the income of both believers and nonbelievers to churches,' while '[i]n the case of an exemption, the state merely refrains from diverting to its own uses income independently generated by the churches through voluntary contributions.' " Walz v. Tax Comm'n of New York City, 397 U.S. 664, 690-691, 90 S.Ct. 1409, 1422, 25 L.Ed.2d 697 (1970) (BRENNAN, J., concurring) (footnote omitted), quoting Gianella, Religious Liberty, Nonestablishment, and Doctrinal Development, pt. 2, 81 Harv.L.Rev. 513, 533 (1968). Of course, irrespective of the taxpayers' stake in the controversy, in terms of the prohibition on government action imposed by the Establishment Clause, there is also a qualitative difference between a subsidy and an exemption. Ibid. 16 Justice Jackson, writing for the Court in Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952), explored the limitations of taxpayer standing under the Establishment Clause. In that case two New Jersey taxpayers challenged a New Jersey law that directed public school teachers to read selected passages from the Bible, seeking a declaratory judgment that such a law violated the Establishment Clause. The Court concluded that the taxpayer lacked standing: "There is no allegation that this activity is supported by any separate tax or paid for from any particular appropriation or that it adds any sum whatever to the cost of conducting the school. No information is given as to what kind of taxes are paid by appellants and there is no averment that the Bible reading increases any tax they do pay or that as taxpayers they are, will, or possibly can be out of pocket because of it." Id., at 433, 72 S.Ct., at 397. The Court had no difficulty distinguishing Everson : "Everson showed a measurable appropriation or disbursement of school-district funds occasioned solely by the activities complained of. This complaint does not." 342 U.S., at 434, 72 S.Ct., at 397. The difference between the two cases is relevant to the "standing" of taxpayers generally and most especially to taxpayers asserting claims under the Establishment Clause, for it is clear that even under the Establishment Clause the taxpayer's protection was against the use of his funds and not against the conduct of the government generally. The distinction between Doremus and Everson may be phrased alternatively: Everson was injured in a manner comprehended by the Establishment Clause, and Doremus was not. 17 The anomaly of allowing a municipality's actions to be challenged by a local taxpayer in federal court as a violation of the Establishment Clause, made applicable to the States by virtue of the Fourteenth Amendment, while exempting the Federal Government, whose use of the taxing power in aid of religion was the target of the Framers' adoption of the Establishment Clause, also must have been apparent to the Court. 18 The test was formulated with the Establishment Clause in mind, but the Court wisely sought to phrase the principle it stood for in general terms: "We have noted that the Establishment Clause of the First Amendment does specifically limit the taxing and spending power conferred by Art. I, § 8. Whether the Constitution contains other specific limitations can be determined only in the context of future cases. However, whenever such specific limitations are found, we believe a taxpayer will have a clear stake as a taxpayer in assuring that they are not breached by Congress. Consequently, we hold that a taxpayer will have standing consistent with Article III to invoke federal judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power. The taxpayer's allegation in such cases would be that his tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative power." 392 U.S., at 105-106, 88 S.Ct., at 1955. In the years since the announcement of the Flast test we have yet to recognize a similar restriction on Congress' power to tax, and I know of none. Nevertheless, like the Justices who joined in the Court opinion in Flast, I remain reluctant to rule out the possibility. 19 It is uncontested here that the property at issue was initially purchased with tax funds, and bears the mark of $10 million in federal improvements. At the time of its transfer to the petitioner, its fair market value was approximately $1.3 million. Americans United v. U.S. Dept. of HEW, 619 F.2d 252, 253 (CA3 1980). The Federal Property and Administrative Services Act of 1949 clearly requires that, whenever possible, fair market value is to be received for property transferred pursuant to its provisions. See 40 U.S.C. §§ 484(e)(1), 484(e)(3)(G). Proceeds "from any sale, lease, or other disposition of surplus property, shall be covered into the Treasury as miscellaneous receipts. . . ." 40 U.S.C. § 485(a). The Act provides, however, that "surplus real property, including buildings, fixtures and equipment situated thereon" may be designated by HEW as necessary for "school, classroom, or other educational use." 40 U.S.C. § 484(k)(1). Such property may be transferred to a "nonprofit educational institution." 40 U.S.C. § 484(k)(1)(A). In fixing the price of such property, the Secretary is required to consider any benefit that may accrue to the United States from the use of the property. 40 U.S.C. § 484(k)(1)(C). By failing to require any payment from petitioner college, the Secretary apparently determined that the benefit to the United States exceeded the fair market value. But it is entirely clear from Tilton that if the facility is and was used for sectarian purposes, the Government was required to obtain full market value at the time such use commences. 20 The Framers of the First Amendment could not have viewed it as less objectionable to the taxpayer to learn that his tax funds were used by his Government to purchase property, construct a church, and deed the property to a religious order, than to find his Government providing the funds to a church to undertake its own construction. So far as the Establishment Clause and the position of the taxpayer are concerned, the situations are interchangeable. Surely James Madison perceived no nice distinction between a grant of land and a grant of funds, when he vetoed a bill providing certain land to a church: "[T]he bill in reserving a certain parcel of land of the United States for the use of said [church] comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that 'Congress shall make no law respecting a religious establishment.' " 1 J. Richardson, Messages and Papers of the Presidents 490 (1897). Nor has Congress perceived a distinction between an appropriation of money and an appropriation of property. For example, in 1896 Congress included in its Appropriation Act for the District of Columbia a statement declaring it "to be the policy of the Government of the United States to make no appropriation of money or property for the purpose of founding, maintaining, or aiding by payment for services, expenses, or otherwise, any church or religious denomination, or any institution or society which is under sectarian or ecclesiastical control." 29 Stat. 411. See Lemon v. Kurtzman, 403 U.S. 602, 648, 91 S.Ct. 2105, 2129, 29 L.Ed.2d 745 (1971) (opinion of BRENNAN, J.).

89

454 U.S. 432 102 S.Ct. 735 70 L.Ed.2d 677 Clarence E. CABELL, et al., Appellantsv.Jose CHAVEZ-SALIDO et al. No. 80-990. Argued Nov. 3, 1981. Decided Jan. 12, 1982. Syllabus Section 1031(a) of the Cal.Gov't Code Ann. (West 1980) requires "public officers or employees declared by law to be peace officers" to be United States citizens; § 830.5 of the Cal.Penal Code Ann. (West Supp.1981) declares probation officers and deputy probation officers to be "peace officers." Appellees, lawfully admitted permanent resident aliens, after unsuccessfully applying for positions as Deputy Probation Officers in Los Angeles County, filed suit in Federal District Court challenging the statutory citizenship requirement under, inter alia, the Equal Protection Clause of the Fourteenth Amendment and seeking declaratory, injunctive, and other relief. The District Court held the requirement unconstitutional both on its face and as applied to appellees. Held: The statutory citizenship requirement is valid. Pp. 436-447. (a) While a restriction on lawfully resident aliens that primarily affects economic interests is subject to strict judicial scrutiny, such scrutiny is out of place when the restriction primarily serves a political function. A claim that a particular restriction on legally resident aliens serves political and not economic goals is to be evaluated in a two-step process. Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853. First, the specificity of the classification will be examined: a classification that is substantially overinclusive or underinclusive tends to undercut the governmental claim that the classification serves legitimate political ends. Second, even if the classification is sufficiently tailored, it may be applied in the particular case only to "persons holding state elective or important nonelective executive, legislative, and judicial positions." Sugarman v. Dougall, supra, at 647, 93 S.Ct., at 2850. Pp. 436-441. (b) The statutes in question are an attempt to limit the exercise of the sovereign's coercive police powers over the community to citizens. They are sufficiently tailored in light of that aim to withstand a facial challenge when reviewed under the appropriate equal protection standard for such an exercise of sovereign power. Pp. 441-444. (c) Probation officers sufficiently partake of the sovereign's power to exercise coercive force over the individual that they may be required to be citizens. Although the range of individuals over whom such officers exercise supervisory authority is limited, the officers' power with respect to those individuals is broad. A citizenship requirement is an appropriate limitation on those who exercise and, therefore, symbolize this power of the political community over those who fall within its jurisdiction. Pp. 444-447. 490 F.Supp. 984, reversed and remanded. William F. Stewart, Los Angeles, Cal., for appellants. Mary S. Burdick, Los Angeles, Cal., for appellees. Justice WHITE delivered the opinion of the Court. 1 In this case we once again consider a citizenship requirement imposed by a State on those seeking to fill certain governmental offices. California Gov't Code Ann. § 1031(a) (West 1980) requires "public officers or employees declared by law to be peace officers" to be citizens of the United States. California Penal Code Ann. § 830.5 (West Supp.1981), provides that probation officers and deputy probation officers are "peace officers." A three-judge District Court of the Central District of California held the California requirement unconstitutional both on its face and as applied to the appellees, who sought positions as Deputy Probation Officers. 490 F.Supp. 984. 2 * Appellees were, at the time the complaint was filed, lawfully admitted permanent resident aliens living in Los Angeles County, Cal.1 Each applied unsuccessfully for positions as Deputy Probation Officers with the Los Angeles County Probation Department.2 With respect to two of the three appellees, the parties stipulated that the failure to obtain the positions sought was the result of the statutory citizenship requirement.3 3 Appellees filed a complaint in the United States District Court for the Central District of California challenging the constitutionality of the citizenship requirement under the Equal Protection Clause of the Fourteenth Amendment and 42 U.S.C. §§ 1981 and 1983. Named as defendants were certain individual county officials, in their official capacity, and the County of Los Angeles.4 4 Appellees alleged unconstitutional discrimination against aliens, impermissible infringement upon their constitutional right to travel, and unconstitutional interference with Congress' plenary power to regulate aliens. They sought declaratory and injunctive relief, as well as attorney's fees and damages for two of the plaintiffs. A three-judge court was properly convened. 28 U.S.C. §§ 2281 (1970 ed.), 2284.5 5 In February 1977, the District Court concluded that the statutory citizenship requirement was unconstitutional both on its face and as applied. Chavez-Salido v. Cabell, 427 F.Supp. 158. That decision rested entirely on appellees' arguments under the Equal Protection Clause; it did not reach the right to travel and federal pre-emption claims. This Court, 436 U.S. 901, 98 S.Ct. 2228, 56 L.Ed.2d 398 vacated and remanded that judgment for further consideration in light of Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978), which upheld a New York statute requiring state troopers to be United States citizens. County of Los Angeles v. Chavez-Salido, 436 U.S. 901, 98 S.Ct. 2228, 56 L.Ed.2d 398 (1978). On remand, the District Court reconsidered its previous position in light of both Foley, supra, and Ambach v. Norwick, 441 U.S. 68, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979), which held that a State may refuse to employ as elementary and secondary school teachers aliens who are eligible for United States citizenship but fail to seek naturalization. With Judge Curtis dissenting, the court found its prior views still valid and convincing. It, therefore, came to the identical conclusion that the California statutory scheme was constitutionally invalid both facially and as applied. 6 We noted probable jurisdiction, 450 U.S. 978, 101 S.Ct. 1511, 67 L.Ed.2d 813 (1981), and now reverse. II 7 Over the years, this Court has many times considered state classifications dealing with aliens. See, e.g., Ambach v. Norwick, supra; Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977); Foley v. Connelie, supra; Examining Board v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976); In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973); Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948); Crane v. New York, 239 U.S. 195, 36 S.Ct. 85, 60 L.Ed. 218 (1915); Heim v. McCall, 239 U.S. 175, 36 S.Ct. 78, 60 L.Ed. 206 (1915); Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). As we have noted before, those cases "have not formed an unwavering line over the years." Ambach v. Norwick, supra, 441 U.S., at 72, 99 S.Ct., at 1592. But to say that the decisions do not fall into a neat pattern is not to say that they fall into no pattern. In fact, they illustrate a not unusual characteristic of legal development; broad principles are articulated, narrowed when applied to new contexts, and finally replaced when the distinctions they rely upon are no longer tenable. 8 In Yick Wo v. Hopkins, supra, the Court held both that resident aliens fall within the protection of the Equal Protection Clause of the Fourteenth Amendment and that the state could not deny to aliens the right to carry on a "harmless and useful occupation" available to citizens. Although Yick Wo proclaimed that hostility toward aliens was not a permissible ground for a discriminatory classification, it dealt only with a situation in which government had actively intervened in the sphere of private employment. In a series of later cases it became clear that Yick Wo did not mean that the State had to be strictly neutral as between aliens and citizens: The Court continued to uphold the right of the State to withhold from aliens public benefits and public resources. Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255 (1923) (ownership of land); Heim v. McCall, supra (employment on public works projects); Patsone v. Pennsylvania, 232 U.S. 138, 34 S.Ct. 281, 58 L.Ed. 539 (1914) (taking of wild game). 9 This distinction between government distribution of public resources and intervention in the private market was clearly established as the principle by which state regulations of aliens were to be evaluated in Truax v. Raich, supra, which struck down a state statute requiring all employers of more than five workers to employ "not less than eighty per cent. qualified electors or native born citizens of the United States:" 10 "The discrimination defined by the act does not pertain to the regulation or distribution of the public domain, or of the common property or resources of the people of the State, the enjoyment of which may be limited to its citizens as against both aliens and citizens of other States." Id., at 39-40, 36 S.Ct., at 9-10. 11 This public/private distinction, the "special public interest" doctrine, seeGraham v. Richardson, supra, 403 U.S., at 372, 374, 91 S.Ct., at 1852, 1853; Sugarman v. Dougall, supra, 413 U.S., at 643, 644, 93 S.Ct., at 2848, was challenged in Takahashi v. Fish & Game Comm'n, supra, which held that California could not bar lawfully resident aliens from obtaining commercial fishing licenses: 12 "To whatever extent the fish in the three-mile belt off California may be 'capable of ownership' by California, we think that 'ownership' is inadequate to justify California in excluding any or all aliens who are lawful residents of the State from making a living by fishing in the ocean off its shores while permitting all others to do so." Id., at 421, 68 S.Ct., at 1143. 13 As the principle governing analysis of state classifications of aliens, who are lawful residents, the distinction was further eroded in Graham v. Richardson, supra, which read Takahashi as "cast[ing] doubt on the continuing validity of the special public-interest doctrine in all contexts," 403 U.S., at 374, 91 S.Ct., at 1853, and held that a State could not distinguish between lawfully resident aliens and citizens in the distribution of welfare benefits. Returning to Yick Wo's holding that lawfully present aliens fall within the protection of the Equal Protection Clause and citing the more recent theory of a two-tiered equal protection scrutiny, Graham implied that there would be very few if any—areas in which a State could legitimately distinguish between its citizens and lawfully resident aliens: 14 "Aliens as a class are a prime example of a 'discrete and insular' minority . . . for whom . . . heightened judicial solicitude is appropriate. Accordingly, it was said in Takahashi, 334 U.S., at 420 [68 S.Ct., at 1143] that 'the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.' " 403 U.S., at 372, 91 S.Ct., at 1852. 15 The cases through Graham dealt for the most part with attempts by the States to retain certain economic benefits exclusively for citizens. Since Graham, the Court has confronted claims distinguishing between the economic and sovereign functions of government. This distinction has been supported by the argument that although citizenship is not a relevant ground for the distribution of economic benefits, it is a relevant ground for determining membership in the political community. "We recognize a State's interest in establishing its own form of government, and in limiting participation in that government to those who are within 'the basic conception of a political community.' " Sugarman v. Dougall, 413 U.S., at 642, 93 S.Ct., at 2847. While not retreating from the position that restrictions on lawfully resident aliens that primarily affect economic interests are subject to heightened judicial scrutiny, ibid.; In re Griffiths, supra; Examining Board v. Flores de Otero, supra, we have concluded that strict scrutiny is out of place when the restriction primarily serves a political function: "[O]ur scrutiny will not be so demanding where we deal with matters resting firmly within a State's constitutional prerogatives [and] constitutional responsibility for the establishment and operation of its own government, as well as the qualifications of an appropriately designated class of public office holders." Sugarman v. Dougall, supra, 413 U.S., at 648, 93 S.Ct., at 2850. We have thus "not abandoned the general principle that some state functions are so bound up with the operation of the State as a governmental entity as to permit the exclusion from those functions of all persons who have not become part of the process of self-government." Ambach v. Norwick, 441 U.S., at 73-74, 99 S.Ct., at 1593. And in those areas the State's exclusion of aliens need not "clear the high hurdle of 'strict scrutiny,' because [that] would 'obliterate all the distinctions between citizens and aliens, and thus depreciate the historic value of citizenship.' " Folley V Connelie, 435 U.S., at 295, 98 S.Ct., at 1070 (citation omitted).6 16 The exclusion of aliens from basic governmental processes is not a deficiency in the democratic system but a necessary consequence of the community's process of political self-definition. Self-government, whether direct or through representatives, begins by defining the scope of the community of the governed and thus of the governors as well: Aliens are by definition those outside of this community. Judicial incursions in this area may interfere with those aspects of democratic self-government that are most essential to it. This distinction between the economic and political functions of government has, therefore, replaced the old public/private distinction. Although this distinction rests on firmer foundations than the old public/private distinction, it may be difficult to apply in particular cases. 17 Sugarman advised that a claim that a particular restriction on legally resident aliens serves political and not economic goals is to be evaluated in a two-step process. First, the specificity of the classification will be examined: a classification that is substantially overinclusive or underinclusive tends to undercut the governmental claim that the classification serves legitimate political ends. The classification in Sugarman itself—all members of the competitive civil service—could not support the claim that it was an element in "the State's broad power to define its political community," 413 U.S., at 643, 93 S.Ct., at 2848, because it indiscriminately swept in menial occupations, while leaving out some of the State's most important political functions. Second, even if the classification is sufficiently tailored, it may be applied in the particular case only to "persons holding state elective or important nonelective executive, legislative, and judicial positions," those officers who "participate directly in the formulation, execution, or review of broad public policy" and hence "perform functions that go to the heart of representative government." Id., at 647, 93 S.Ct., at 2850.7 We must therefore inquire whether the "position in question . . . involves discretionary decisionmaking, or execution of policy, which substantially affects members of the political community." Foley v. Connelie, supra, 435 U.S., at 296, 98 S.Ct., at 1070. 18 The restriction at issue in this case passes both of the Sugarman tests. III 19 Appellees argue, and the District Court agreed, that Cal.Gov't Code Ann. § 1031(a) (West 1980), which requires all state "peace officers" to be citizens, is unconstitutionally overinclusive: "Section 1031(a) is void as a law requiring citizenship which 'sweeps too broadly.' " 490 F.Supp., at 986.8 The District Court failed to articulate any standard in reaching this conclusion. Rather, it relied wholly on its belief that of the more than 70 positions included within the statutory classification of "peace officer," some undefined number of them "cannot be considered members of the political community no matter how liberally that category is viewed." Id., at 987. The District Court's entire argument on this point consisted of just one sentence: "There appears to be no justification whatever for excluding aliens, even those who have applied for citizenship, from holding public employment as cemetery sextons, furniture and bedding inspectors, livestock identification inspectors, and toll service employees." Id., at 986. In believing this sufficient, the District Court applied a standard of review far stricter than that approved in Sugarman and later cases. 20 We need not hold that the District Court was wrong in concluding that citizenship may not be required of toll-service employees, cemetery sextons, and inspectors to hold that the District Court was wrong in striking down the statute on its face.9 The District Court assumed that if the statute was overinclusive at all, it could not stand. This is not the proper standard. Rather, the inquiry is whether the restriction reaches so far and is so broad and haphazard as to belie the State's claim that it is only attempting to ensure that an important function of government be in the hands of those having the "fundamental legal bond of citizenship." Ambach v. Norwick, 441 U.S., at 75, 99 S.Ct., at 1593. Under this standard, the classifications used need not be precise; there need only be a substantial fit. Our examination of the California scheme convinces us that it is sufficiently tailored to withstand a facial challenge. 21 The general requirements, including citizenship, for all California peace officers are found in Cal.Gov't Code Ann. § 1031 (West 1980). That section, however, does not designate any particular official as a peace officer; rather, Cal.Penal Code Ann. § 830 (West Supp.1981) lists the specific occupations that fall within the general category of "peace officer." Even a casual reading of the Penal Code makes clear that the unifying character of all categories of peace officers is their law enforcement function. Specific categories are defined by either their geographical jurisdiction or the specific substantive laws they have the responsibility to enforce. Thus, not surprisingly, the first categories listed include police officers at the county, city, and district levels. § 830.1. This is followed by various categories of police power authorized by the State: e.g., highway patrol officers, the state police, and members of the California National Guard when ordered into active service. § 830.2. After this, the statute includes a long list of particular officers with responsibility for enforcement of different substantive areas of the law: e.g., individuals charged with enforcement of the alcoholic beverage laws, the food and drug laws, fire laws, and the horse racing laws. § 830.3. Finally, there are several catchall provisions that include some officers with narrow geographic responsibilities—e.g., park rangers, San Francisco Bay Area Rapid Transit District police, harbor police, community college police, security officers of municipal utility districts, and security officers employed in government buildings—and some with narrow "clientele"—e.g., welfare-fraud or child-support investigators, correctional officers, parole and probation officers. §§ 830.31-830.6. 22 Although some of these categories may have only a tenuous connection to traditional police functions of law enforcement, the questionable classifications are comparatively few in number.10 The general law enforcement character of all California "peace officers" is underscored by the fact that all have the power to make arrests, § 836, and all receive a course of training in the exercise of their respective arrest powers and in the use of firearms. § 832. Foley made clear that a State may limit the exercise of the sovereign's coercive police powers over the members of the community to citizens. The California statutes at issue here are an attempt to do just that. They are sufficiently tailored in light of that aim to pass the lower level of scrutiny we articulated as the appropriate equal protection standard for such an exercise of sovereign power in Sugarman.11 IV 23 The District Court also held that the citizenship requirement was invalid as applied to the positions at issue here—deputy probation officers. In reaching this conclusion, it focused too narrowly on a comparison of the characteristics and functions of probation officers with those of the state troopers at issue in Foley and the teachers in Ambach. Foley and Ambach did not describe the outer limits of permissible citizenship requirements. For example, although both of those cases emphasized the communitywide responsibilities of teachers and police, there was no suggestion that judges, who deal only with a narrow subclass of the community, cannot be subject to a citizenship requirement. See Sugarman, 413 U.S., at 647, 93 S.Ct., at 2850. Similarly, although both Foley and Ambach emphasized the unsupervised discretion that must be exercised by the teacher and the police officer in the performance of their duties, neither case suggested that jurors, who act under a very specific set of instructions, could not be required to be citizens. See Perkins v. Smith, 370 F.Supp. 134 (Md.1974), summarily aff'd, 426 U.S. 913, 96 S.Ct. 2616, 49 L.Ed.2d 368 (1976). Definition of the important sovereign functions of the political community is necessarily the primary responsibility of the representative branches of government, subject to limited judicial review.12 24 Looking at the functions of California probation officers, we conclude that they, like the state troopers involved in Foley, sufficiently partake of the sovereign's power to exercise coercive force over the individual that they may be limited to citizens. Although the range of individuals over whom probation officers exercise supervisory authority is limited, the powers of the probation officer are broad with respect to those over whom they exercise that authority.13 The probation officer has the power both to arrest, Cal.Penal Code Ann. §§ 830.5, 836, 1203.2 (West Supp.1981); Cal.Civ.Proc.Code Ann. § 131.4 (West 1954); and to release those over whom he has jurisdiction. Cal.Penal Code Ann. § 1203.1a (West Supp.1981). He has the power and the responsibility to supervise probationers and insure that all the conditions of probation are met and that the probationer accomplishes a successful reintegration into the community. Cal.Penal Code Ann. § 1203.1 (West Supp. 1981). With respect to juveniles, the probation officer has the responsibility to determine whether to release or detain offenders, Cal.Welf. & Inst.Code Ann. § 628 (West Supp.1981), and whether to institute judicial proceedings or take other supervisory steps over the minor. §§ 630, 653-654. In carrying out these responsibilities the probation officer necessarily has a great deal of discretion that, just like that of the police officer and the teacher, must be exercised, in the first instance, without direct supervision: 25 "Because the probation or parole officer's function is not so much to compel conformance to a strict code of behavior as to supervise a course of rehabilitation, he has been entrusted traditionally with broad discretion to judge the progress of rehabilitation in individual cases, and has been armed with the power to recommend or even to declare revocation." Gagnon v. Scarpelli, 411 U.S. 778, 784, 93 S.Ct. 1756, 1760, 36 L.Ed.2d 656 (1973). 26 One need not take an overly idealistic view of the educational functions of the probation officer during this period to recognize that the probation officer acts as an extension of the judiciary's authority to set the conditions under which particular individuals will lead their lives and of the executive's authority to coerce obedience to those conditions.14 From the perspective of the probationer, his probation officer may personify the State's sovereign powers; from the perspective of the larger community, the probation officer may symbolize the political community's control over, and thus responsibility for, those who have been found to have violated the norms of social order. From both of these perspectives, a citizenship requirement may seem an appropriate limitation on those who would exercise and, therefore, symbolize this power of the political community over those who fall within its jurisdiction. 27 Therefore, the judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion. 28 So ordered. 29 Justice BLACKMUN, with whom Justice BRENNAN, Justice MARSHALL, and Justice STEVENS join, dissenting. 30 Appellees Jose Chavez-Salido, Pedro Luis Ybarra, and Ricardo Bohorquez are American-educated Spanish-speaking lawful residents of Los Angeles County, California.1 Seven years ago, each had a modest aspiration—to become a Los Angeles County "Deputy Probation Officer, Spanish-speaking." Each was willing to swear loyalty to the State and Federal Governments; indeed, appellee Chavez-Salido declared his intent to become a citizen. By competitive examination, two of the appellees, and possibly the third, demonstrated their fitness for the jobs they desired.2 Appellants denied them those jobs solely because they were not citizens. 31 The Court today concludes that appellees' exclusion from their chosen profession is "a necessary consequence of the community's process of political self-definition." Ante, at 439. The Court reaches this conclusion by misstating the standard of review it has long applied to alienage classifications. It then asserts that a lawfully admitted permanent resident alien is disabled from serving as a deputy probation officer because that job " 'go[es] to the heart of representative government.' " Ante, at 440, quoting Sugarman v. Dougall, 413 U.S. 634, 647, 93 S.Ct. 2842, 2850, 37 L.Ed.2d 853 (1973). 32 In my view, today's decision rewrites the Court's precedents, ignores history, defies common sense, and reinstates the deadening mantle of state parochialism in public employment. I must dissent. 33 * The Court properly acknowledges that our decisions regarding state discrimination against permanent resident aliens have formed a pattern. Ante, at 436. Since Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), this Court has recognized and honored the right of a lawfully admitted permanent resident alien to work for a living in the common occupations of the community. In Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131 (1915), the Court declared that right to be 34 "the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure. . . . If this could be refused solely upon the ground of race or nationality, the prohibition of the denial to any person of the equal protection of the laws would be a barren form of words." 35 In Sugarman v. Dougall, supra, we expressly refused to exempt public employment positions from this general rule. Sugarman, an 8-1 decision, struck down as facially inconsistent with the Equal Protection Clause a New York statute that excluded lawfully admitted aliens from all state civil service jobs offered on the basis of competitive examinations. Sugarman directed that permanent resident aliens may not be barred as a class from the common public occupations of the community. There, as here, the State had asserted its substantial interest in ensuring "that sovereign functions must be performed by members of the State." Brief for Appellants in Sugarman v. Dougall, O.T. 1972, No. 71-1222, p. 10. Without denying the weight of that interest, the Court concluded that, "judged in the context of the State's broad statutory framework and the justifications the State present[ed]," 413 U.S., at 640, 93 S.Ct., at 2846, the State's chosen means were insufficiently precise to uphold its broad exclusion of aliens from public employment. 36 Since Sugarman, the Court consistently has held that in each case where the State chooses to discriminate against permanent resident aliens, "the governmental interest claimed to justify the discrimination is to be carefully examined in order to determine whether that interest is legitimate and substantial, and inquiry must be made whether the means adopted to achieve the goal are necessary and precisely drawn." Examining Board v. Flores De Otero, 426 U.S. 572, 605, 96 S.Ct. 2264, 2282, 49 L.Ed.2d 65 (1976). See also Nyquist v. Mauclet, 432 U.S. 1, 7, 97 S.Ct. 2120, 2124, 53 L.Ed.2d 63 (1977); In re Griffiths, 413 U.S. 717, 721-722, 93 S.Ct. 2851, 2854-2855, 37 L.Ed.2d 910 (1973); Graham v. Richardson, 403 U.S. 365, 376, 91 S.Ct. 1848, 1854, 29 L.Ed.2d 534 (1971). "Alienage classifications by a State that do not withstand this stringent examination cannot stand." Nyquist v. Mauclet, 432 U.S., at 7, 97 S.Ct., at 2124. 37 Applying this stringent standard here, I would hold that, on its face, Cal.Gov't Code Ann. § 1031(a) (West) (1980) violates the Equal Protection Clause. Section 1031(a) makes citizenship one of six unrelated prerequisites for employment as a "public office[r] or employe[e] declared by law to be [a] peace office[r]."3 Scattered sections of the California Code then designate a variegated collection of public employees as "peace officers," who by definition must be citizens. When appellees first sought their jobs, the "peace officer" category encompassed more than 70 public occupations, including such apparently unrelated positions as toll takers, cemetery sextons, fish and game wardens, furniture and bedding inspectors, voluntary fire wardens, racetrack investigators, county coroners, State Supreme Court and Courts of Appeal bailiffs, messengers at the State Treasurer's office, and inspectors for the Board of Dental Examiners. See Chavez-Salido v. Cabell, 427 F.Supp. 158, 169-170, n. 22 (CD Cal. 1977) (listing positions). To this day, the legislature has offered no reason why such divergent classes of public jobs were gathered under the "peace officer" umbrella.4 38 The history of the statute, reviewed by the District Court, suggests the answer. Before 1961, California did not require any of its peace officers to be citizens. See 490 F.Supp. 984, 986 (CD Cal. 1980). Indeed, in 1851, California granted only sheriffs, policemen, marshals, and constables statutory "peace officer" status. Id., at 986, n. 4. For more than a century, the State did not reserve even those four occupations for citizens. Over the decades, dozens of subsequent enactments added other public positions to the "peace officer" list, but none required peace officers to be citizens. Ibid. Some positions were added to the list for reasons totally unrelated to logic.5 39 In 1961, without stating any rationale, "in one fell swoop, the legislature passed Government Code Section 1031 which applied the mandatory citizenship requirement to all of the positions on the list." Id., at 986. The legislature apparently made no attempt to include on the "peace officer" list all positions for which citizenship arguably might be relevant or to exclude all positions for which it plainly would be irrelevant. Nine years after § 1031(a) was enacted, California's own Attorney General stated: 40 "It is our opinion that . . . this citizenship requirement can no longer validly be imposed. . . . 41 "[P]rior to 1961, there was no general requirement of citizenship to be a peace officer. We are aware of no change that occurred that would justify the change at that date. . . . [W]e are of the opinion that the classification is not constitutionally permitted. There does not appear to be a compelling state interest . . . to justify classifying certain peace officers as to alienage." Opinion No. 69-199, 53 Op.Cal.Atty.Gen. 63, 67-68 (1970). 42 After reviewing this history, the District Court sensibly concluded, not once but twice, that § 1031(a) could not survive the rigorous standard of review mandated by Sugarman and its progeny. See Chavez-Salido v. Cabell, 427 F.Supp., at 169-171; Chavez-Salido v. Cabell, 490 F.Supp., at 985-986. Noting that the State's own legal counsel had found the statute unsupported by a compelling state interest, the District Court concluded that the California Legislature had never made a reasoned judgment to exclude aliens from each individual "peace officer" position. Id., at 985-987. The District Court then found that, like the provision struck down in Sugarman, § 1031(a) "is grossly overbroad and sweeps much too broadly in its proscription of alien employment." 490 F.Supp., at 987. 43 Without even a glance at § 1031(a)'s history, the Court today reverses, reasoning that the District Court improperly "applied a standard of review far stricter than that approved in Sugarman and later cases." Ante, at 442. The Court reads Sugarman to hold that "strict scrutiny is out of place when the restriction [on lawfully resident aliens] primarily serves a political function." Ante, at 439. Based on its "casual reading" of the list of "peace officer" positions from which aliens are excluded, the Court then decides that "the unifying character of all categories of peace officers is their law enforcement function." Ante, at 443. Conceding that § 1031(a) also bars aliens from jobs that "may have only a tenuous connection to traditional police functions of law enforcement," ante, at 443, the Court nevertheless declares that alienage classifications "need not be precise; there need only be a substantial fit" between the classification used and the State's asserted interest. Ante, at 442. 44 The Court's analysis fundamentally distorts Sugarman. That decision did not condone a looser standard for review of classifications barring aliens from "political" jobs. In both Sugarman and Nyquist, the Court recognized that a State may name its political community by exercising its "historical and constitutional powers to define the qualifications of voters or of 'elective or important nonelective' officials 'who participate directly in the formulation, execution, or review of broad public policy.' " Nyquist v. Mauclet, 432 U.S., at 11, 97 S.Ct., at 2126 (footnote omitted), quoting from Sugarman, 413 U.S., at 647, 93 S.Ct., at 2850. At the same time, however, the Court warned that "in seeking to achieve this substantial purpose, with discrimination against aliens, the means the State employs must be precisely drawn in light of the acknowledged purpose." Id., at 643, 93 S.Ct., at 2848. 45 While the subsequent decisions in Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978), and Ambach v. Norwick, 441 U.S. 68, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979), have explored the boundaries of a State's power to define its political community, those cases have not altered this stringent standard of review. Foley tempered the declaration that a State may entrust "its most important policy responsibilities" to its citizens with the caveat that a State may not "accomplish this end with a citizenship restriction that 'sweeps indiscriminately,' . . . without regard to the differences in the positions involved." 435 U.S., at 296 and 297, n. 5, 98 S.Ct., at 1070 and 1071, n. 5, citing Sugarman, 413 U.S., at 643, 93 S.Ct., at 2848. Similarly, Ambach declared that judicial tolerance of citizenship requirements for essential public offices "is an exception to the general standard applicable to classifications based on alienage." 441 U.S., at 75, 99 S.Ct., at 1593. 46 Under the Sugarman standard, a state statute that bars aliens from political positions lying squarely within the political community nevertheless violates the Equal Protection Clause if it excludes aliens from other public jobs in an unthinking or haphazard manner. The statutes at issue here represent just such an unthinking and haphazard exercise of state power. The District Court found, and the Court does not deny, that some of the more than 70 "peace officer" positions from which aliens have been barred "cannot be considered members of the political community no matter how liberally that category is viewed." 490 F.Supp., at 987. At the same time, California has long permitted aliens to teach in public schools, to be employed on public works, and to serve in most state, city, and county employment positions—all positions arguably within the political community.6 47 Thus, exactly like the statute struck down in Sugarman, California's statutory exclusion of aliens is fatally overinclusive and underinclusive. It bars aliens from employment in numerous public positions where the State's proffered justification has little, if any, relevance. At the same time, it allows aliens to fill other positions that would seem naturally to fall within the State's asserted purpose. Cf. Sugarman, 413 U.S., at 642, 93 S.Ct., at 2847. "Our standard of review of statutes that treat aliens differently from citizens requires a greater degree of precision." Ibid. 48 Nor can the Court reconcile its new notion of a "substantial fit" with the stringent standard of review the Court long has applied to alienage classifications. Every time the State requires citizenship for a single "peace officer" position, it excludes permanent resident aliens from hundreds or even thousands of public jobs. The Court's novel standard of review condones a legislative classification that excludes aliens from more than 70 public occupations although citizenship cannot be even rationally required for a substantial number of them.7 The fact that many of those positions may involve law enforcement cannot justify barring noncitizens from any of the positions that plainly do not. Today's decision thus defies the Court's earlier holdings that the States may not exclude aliens from any "harmless and useful occupation" for which citizenship cannot rationally be required. Yick Wo v. Hopkins, 118 U.S., at 374, 6 S.Ct., at 1073; Truax v. Raich, 239 U.S., at 41, 36 S.Ct., at 10. II 49 While Sugarman unambiguously proscribed blanket exclusion of aliens from state jobs, its dictum acknowledged a State's power to bar noncitizens as a class from a narrowly circumscribed range of important nonelective posts involving direct participation "in the formulation, execution, or review of broad public policy." 413 U.S., at 647, 93 S.Ct., at 2850. Under Sugarman's exception, States may reserve certain public offices for their citizens if those offices "perform functions that go to the heart of representative government." Ibid. 50 As originally understood, the Sugarman exception was exceedingly narrow. Less demanding scrutiny was deemed appropriate only for statutes deriving from "a State's historical power to exclude aliens from participation in its democratic political institutions" or its "constitutional responsibility for the establishment and operation of its own government." Id., at 648, 93 S.Ct., at 2850. Long before Sugarman, the Court warned that "the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits," Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 420, 68 S.Ct. 1138, 1143, 92 L.Ed. 1478 (1948). In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973), decided the same day as Sugarman, further emphasized the "narrowness of the [Sugarman] exception" by asserting that States could not reserve for their citizens every "vital public and political role." Nyquist v. Mauclet, 432 U.S., at 11, 97 S.Ct., at 2126, citing In re Griffiths, 413 U.S., at 729, 93 S.Ct., at 2858. 51 Sugarman § holding made clear that a State's power to exclude resident aliens from public occupations that entail only "execution . . . of broad public policy" is limited. Sugarman, 413 U.S., at 647, 93 S.Ct., at 2850. Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978), and Ambach v. Norwick, 441 U.S. 68, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979), then clarified that public jobs involving execution, but not formulation or review, of executive and judicial policy will meet Sugarman 's exception if they constitute "one of the basic functions of government" and "fulfil[l] a most fundamental obligation of government to its constituency." Foley, 435 U.S., at 297, 98 S.Ct., at 1071. 52 Even accepting the judgments in Foley and Ambach as binding, I cannot embrace the Court's unsupported assertion that "Foley and Ambach did not describe the outer limits of permissible citizenship requirements." Ante, at 444. From the Court's analysis in Foley and Ambach, one must conclude that a State may not invoke Sugarman § narrow exception without making a substantial showing.8 53 I read Foley and Ambach to require the State to show that it has historically reserved a particular executive position for its citizens as a matter of its "constitutional prerogativ[e]." Sugarman, 413 U.S., at 648, 93 S.Ct., at 2850. Furthermore, the State must demonstrate that the public employee in that position exercises plenary coercive authority and control over a substantial portion of the citizen population. The public employee must exercise this authority over his clientele without intervening judicial or executive supervision. Even then, the State must prove that citizenship " 'bears some rational relationship to the special demands of the particular position.' " Id., at 647, 93 S.Ct., at 2850, quoting Dougall v. Sugarman, 339 F.Supp. 906, 911 (SDNY 1971) (Lumbard, J., concurring). 54 Without such a rigorous test, Sugarman § exception swallows Sugarman § rule. Yet the Court does not apply such a rigorous test today. Instead, it "look[s] to the importance of the [governmental] function as a factor giving substance to the concept of democratic self-government." Ante, at 441, n. 7. Applying this nebulous standard, the Court then concludes that Los Angeles County probation officers perform three "important sovereign functions of the political community." Ante, at 445. Yet on inspection, not one of those functions justifies excluding all permanent resident aliens from the deputy probation officer position. 55 First, the Court declares that probation officers "partake of the sovereign's power to exercise coercive force over the individual." Ibid. Yet the Court concedes that "the range of individuals over whom probation officers exercise supervisory authority is limited." Ibid. Even over those individuals, a probation officer's coercive powers are carefully conditioned by statute. Probation officers cannot carry guns. See 490 F.Supp., at 985, n. 2. They may arrest only those probationers under their jurisdiction, and even then only for the purpose of bringing them before the court for a determination whether they should be held or released. Cal.Penal Code Ann. § 1203.2 (West Supp.1981). State statutes authorize probation officers to detain juveniles only in emergencies and, even then, for only brief periods. Cal.Welf. & Inst.Code Ann. §§ 309, 313, 315 (West Supp.1981). 56 The Court claims that § 1031(a) "limit[s] the exercise of the sovereign's coercive police powers over the members of the community to citizens." Ante, at 444. Yet other statutes belie that assertion. The State gives the power of arrest to a number of public employees who are not peace officers, but does not require that those employees be citizens. See Cal.Penal Code Ann. § 830.7 (West Supp.1981) (describing "[p]ersons not peace officers but having powers of arrest"). Moreover, California authorizes any "private person," including permanent resident aliens, to arrest others who have actually committed felonies or who have committed or attempted public offenses in their presence. §§ 834, 837. The Court's hollow assertion that the legislature has reserved its sovereign coercive powers for its citizens ignores the reality that the State has already bestowed some of those powers on all private persons, including aliens. 57 Second, the Court asserts that probation officers necessarily have "discretion that . . . must be exercised, in the first instance, without direct supervision." Ante, at 446. Yet to say this is to say very little. Almost everyone who works in the government bureaucracy exercises some discretion that is unsupervised in the first instance. The Court itself observes that probation officers have discretion primarily to investigate, to supervise, to evaluate, and to recommend. Ibid. Their primary duties are preparing presentence reports, supervising probationers, and recommending sentences and probationary terms. Chavez-Salido v. Cabell, 427 F.Supp., at 171. 58 While I do not denigrate these functions, neither can I equate them with the discretionary duties of policemen, judges, and jurors. Unlike policemen, probation officers are not "clothed with authority to exercise an almost infinite variety of discretionary powers." Foley v. Connelie, 435 U.S., at 297, 98 S.Ct., at 1071.9 Unlike jurors who deliver final verdicts and judges who impose final sentences, the decisions of probation officers are always advisory to and supervised by judicial officers. California probation officers cannot by themselves declare revocation of probation. Cal.Penal Code Ann. § 1203.2 (West Supp.1981). Furthermore, the investigative and reporting duties of a probation officer are extensively regulated by statute. §§ 1203.2-1203.12. The fact that probation officers play an integral role in the criminal justice system does not separate them from prison guards, bailiffs, court clerks, and the myriad other functionaries who execute a State's judicial policy. 59 More significantly, California's inflexible exclusion of aliens from deputy probation officer positions is inconsistent with its tolerance of aliens in other roles integral to the criminal justice system. California counties apparently may appoint aliens to the positions of chief juvenile probation officer or chief adult probation officer "if . . . the best interests of the county will be served." Cal.Gov't Code Ann. § 24001 (West Supp.1981). Furthermore, even before In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973), the California Supreme Court had held that lawfully resident aliens may not be barred constitutionally from the practice of law. Raffaelli v. Committee of Bar Examiners, 7 Cal.3d 288, 101 Cal.Rptr. 896, 496 P.2d 1264 (1972). Nor are resident aliens barred from becoming California Superior Court judges or Supreme Court justices.10 60 Thus, a criminal defendant in California may be represented at trial and on appeal by an alien attorney, have his case tried before an alien judge and appealed to an alien justice, and then have his probation supervised by a county probation department headed by an alien. I find constitutionally absurd the Court's suggestion that the same defendant cannot be entrusted to the supervised discretion of a resident alien deputy probation officer. In the Court's own words, a statutory scheme that tolerates such a result is sufficiently "haphazard as to belie the State's claim that it is only attempting to ensure that an important function of government be in the hands of those having the 'fundamental legal bond of citizenship.'" Ante, at 442. 61 The Court's third and final claim is that a probation officer acts as an actual and symbolic "extension" of the judiciary's authority to, 102 S.Ct. 751 set conditions of probation and the executive's authority to coerce obedience to those conditions. Ante, at 447. Yet, by so saying, the Court simply concedes that the ultimate authority for a probation officer's acts lies elsewhere. In Griffiths, we held that aliens are not constitutionally disabled from serving as "officers of the court." 413 U.S., at 722-727, 93 S.Ct., at 2855-2857. Given the size of the State's judicial and executive bureaucracy, little would be left of Sugarman § holding if a State could invoke the Sugarman exception to exclude probation officers from any position which "extended" judicial or executive authority.11 62 Nor am I convinced by the Court's claim that a probation officer personifies the State's sovereign powers in the eyes of probationers and the larger community. This justification knows no limit. Surely a taxpayer feels the State's sovereign power when the local tax collector comes to his door; the larger community recognizes the sovereign power of the government when local firefighters put out a fire. The State could not also demand citizenship for those jobs, however, without thoroughly eviscerating Sugarman. Nor does the Court deny that the sight of foreign-born individuals not merely following, but encouraging others to follow, our laws is an equally powerful symbol of respect for our society's social norms. 63 In the end, the State has identified no characteristic of permanent resident aliens as a class which disables them from performing the job of deputy probation officer. Cf. Foley v. Connelie, 435 U.S., at 308, 98 S.Ct., at 1077 (STEVENS, J., dissenting). The State does not dispute that these appellees possess the qualifications and educational background to perform the duties that job entails. See nn. 1 and 2, supra. Indeed, the State advances no rational reason why these appellees, native Spanish-speakers with graduate academic degrees, are not superbly qualified to act as probation officers for Spanish-speaking probationers, some of whom themselves may not be citizens. Cf. Ambach v. Norwick, 441 U.S., at 84, 87-88, 99 S.Ct., at 1598, 1600 (dissenting opinion). 64 The State cannot challenge the appellees' lack of familiarity with local laws or rules. Such a consideration might disqualify nonresident citizens, but not permanent resident aliens who have lived in California for much of their lives. Nor can the State presume that aliens as a class would be less loyal to the State. The Court's rulings in In re Griffiths, 413 U.S., at 726, n. 18, 93 S.Ct., at 2857, n. 18, and Hampton v. Mow Sun Wong, 426 U.S. 88, 111, n. 43, 96 S.Ct. 1895, 1909, n. 43, 48 L.Ed.2d 495 (1976), clearly state that one need not be a citizen in order to swear in good conscience to support the Constitution. When these appellees applied for their jobs, they expressed their willingness to take such oaths. One later declared his intent to become, and then became, a citizen. See 490 F.Supp., at 985, n. 2. Finally, the State cannot claim that by enacting § 1031(a), it seeks to encourage aliens to become citizens. That objective is an exclusively federal interest. Nyquist v. Mauclet, 432 U.S., at 10-11, 97 S.Ct., at 2125-2126. 65 I only can conclude that California's exclusion of these appellees from the position of deputy probation officer stems solely from state parochialism and hostility toward foreigners who have come to this country lawfully. I find it ironic that the Court invokes the principle of democratic self-government to exclude from the law enforcement process individuals who have not only resided here lawfully, but who now desire merely to help the State enforce its laws. Section 1031(a) violates appellees' rights to equal treatment and an individualized determination of fitness. 66 I would affirm the District Court's ruling that § 1031(a) is unconstitutional on its face and as applied. 1 One of the appellees, Chavez-Salido, subsequently became a citizen. By that time, however, there were no longer any openings for the job he had previously been denied on the grounds of his noncitizenship. Appellees, at the time they applied for the positions in question, were all lawfully present, resident aliens. Therefore, we do not consider, and intimate no opinion about, any limits the Constitution may place upon state action directed at aliens who are here without the permission of the Federal Government or who, if legally here, are not residents of the State. 2 Under the California statute, the kinds of responsibilities of deputy probation officers are the same as those of probation officers and both are considered "peace officers." Cal.Penal Code Ann. § 830.5 (West Supp.1981). This opinion, therefore, will refer simply to "probation officers" in discussing the positions at issue. 3 The third appellee, Bohorquez, claimed only that he failed to appeal a test score that disqualified him, because he had been informed that without citizenship an appeal would be useless. As relief in this suit, Bohorquez sought only an opportunity to take a new examination. 4 Although the individual defendants did not contest the jurisdiction of the federal court, the county did. In their complaint, appellees waived any claim against the county under 42 U.S.C. § 1983—the complaint was filed before this Court's decision in Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which held that such an action could be brought against a county. Appellees argued, and the District Court agreed, that they did have a claim against the county directly under the Fourteenth Amendment and under 42 U.S.C. § 1981, with jurisdiction in the Federal District Court under 28 U.S.C. § 1331(a) because there was more than $10,000 in controversy. In its second opinion, the District Court readopted its earlier jurisdictional holdings and declined to release appellees from their previous waiver of a possible claim against the county under § 1983. Given our resolution of the merits and because jurisdiction over the individual defendants is clear, we need not evaluate or otherwise accept the District Court's jurisdictional findings with respect to the county. 5 Congress has since limited the availability of three-judge courts, The Three-Judge Court Amendments of 1976, Pub.L. 94-381, 90 Stat. 1119. This case, however, is not affected by those changes, which do not apply to actions commenced before the date of the new statute's enactment. 6 At times the dissent seems to imply that our cases do not establish a two-tiered standard of review—e.g., "[Sugarman] did not condone a looser standard for review of classifications barring aliens from 'political jobs.' " Post, at 453. At other times, however, the dissent explicitly refers to the "Sugarman exception" as requiring "[l]ess demanding scrutiny . . . for statutes deriving from 'a State's historical power to exclude aliens from participation in its democratic political institutions.' " Post, at 456. 7 The full quotation from Sugarman is as follows: " '[E]ach State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen.' Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 161 [12 S.Ct. 375, 382, 36 L.Ed. 103] (1892). See Luther v. Borden, 7 How. 1, 41 [12 L.Ed. 581] (1849); Pope v. Williams, 193 U.S. 621, 632-633 [24 S.Ct. 573, 575, 48 L.Ed. 817] (1904). Such power inheres in the State by virtue of its obligation, already noted above, 'to preserve the basic conception of a political community.' Dunn v. Blumstein, 405 U.S. [330], at 344 [92 S.Ct. 995, at 1004, 31 L.Ed.2d 274]. And this power and responsibility of the State applies, not only to the qualifications of voters, but also to persons holding state elective or important nonelective executive, legislative, and judicial positions, for officers who 'participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government.' " 413 U.S., at 647, 93 S.Ct., at 2850. This language is far reaching and no limits on it were suggested by Sugarman itself: almost every governmental official can be understood as participating in the execution of broad public policies. The limits on this category within which citizenship is relevant to the political community are not easily defined, but our cases since Sugarman—Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978), and Ambach v. Norwick, 441 U.S. 68, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979)—suggest that this Court will not look to the breadth of policy judgments required of a particular employee. Rather, the Court will look to the importance of the function as a factor giving substance to the concept of democratic self-government. 8 Both the District Court and the parties mistakenly refer to this argument as one based on the constitutional doctrine of "overbreadth." "Overbreadth" is a doctrine of standing applicable in certain First Amendment cases and under which litigants may assert the rights of others not presently before the court. See Broadrick v. Oklahoma, 413 U.S. 601, 611-615, 93 S.Ct. 2908, 2915-2917, 37 L.Ed.2d 830 (1973). Appellees do not claim to be asserting the constitutional rights of others; rather, they claim that California denies them the equal protection of the laws because the restriction is so overinclusive that it destroys the State's asserted justification. 9 It is worth noting, however, that of the categories mentioned by the District Court, toll-service employees, inspectors of the Bureau of Livestock, and cemetery sextons were all eliminated from coverage by amendments to Cal.Penal Code Ann. § 830.4 (West Supp.1981), passed in 1980. 1980 Cal.Stats., ch. 1340, p. 4724, § 12, effective Sept. 30, 1980. 10 The dissent specifically questions only four positions. Post, at 455, n. 7. Three of these—Dental Board Inspectors, Parks and Recreation Department employees, and voluntary fire wardens—are designated "peace officers" only when their "primary duty" is law enforcement. See Cal.Penal Code Ann. §§ 830.3(b), (c), (j) (West Supp.1981). 11 The dissent accuses the Court of holding that the law enforcement character of some of the covered positions justifies application of the citizenship restriction to unrelated positions. Post, at 455. We indicate no opinion as to whether noncitizen applicants for other positions could successfully challenge the statute as applied to them. 12 Appellees also argue that the statute is facially invalid because it is impermissibly underinclusive. The District Court did not consider this contention, and the only argument advanced by appellees in support of this claim is that California fails to impose a citizenship requirement upon its public school teachers. Brief for Appellees 29. At various points, the dissent also relies upon the alleged underinclusiveness of the statute. Although there is some language in Sugarman indicating that such an argument is appropriate, 413 U.S., at 640, 642, 93 S.Ct., at 2846, 2847, and that a statutory exclusion of aliens from a particular form of public employment will be evaluated in light of the entire framework of public employment positions open and closed to aliens, clearly our subsequent cases have not adopted that position. Thus, in both Foley and Ambach only the specific governmental functions directly at issue were considered. Underinclusiveness arguments were relevant in Sugarman because there the classification involved—the competitive civil service swept in a wide variety of governmental functions. Such a sweeping and apparently indiscriminate categorization raises legitimate questions of arbitrariness that are not raised when the State limits a particular and important governmental function e.g., coercive police power—to citizens. When we deal with such a specific category, underinclusiveness arguments are relevant only within the category: Are there, for example, individuals who exercise the State's coercive police power that are not required to be citizens? In this respect, the California statutory scheme is not substantially underinclusive: Cal.Penal Code Ann. § 830.7 (West Supp.1981) lists only two categories of positions which have the power to arrest but are not "peace officers"—and therefore are not subject to the citizenship requirement—security officers at institutions of higher education and certain individuals designated by a cemetery authority. 13 Measuring the scope of community contacts is more difficult than it may appear. Although the probation officer has responsibility for only a relatively small part of the community, in exercising that responsibility the probation officer necessarily comes in contact with a much broader section of the community. His supervisory responsibilities will bring him into contact with many of those with whom those under his supervision must interact—e.g., employers, teachers, landlords, and family. In this respect he is very much like a policeman, who exercises his coercive authority over a small class of individuals, but carries out his responsibilities through interactions with a much larger segment of the community. 14 Thus we do not find compelling the statistics presented by amicus Service Employees International Union, and cited by appellees at oral argument, Tr. of Oral Arg. 40, which indicate that because of a growing caseload, the time a probation officer has to spend with any individual offender may be minimal. 1 Chavez-Salido, born in Mexico, has been a permanent legal resident of this country for 26 years. He has received all his formal education in California, including a Bachelor of Arts degree in Mexican-American studies from California State College at Long Beach. Ybarra, born in Spain, has been a permanent resident of this country since 1972. He possesses a Bachelor of Arts degree in theology from Camillas University in Spain, and a Master of Arts degree in African Studies from the University of California at Los Angeles. He is working for another Master's degree, in sociology, at California State University at Northridge. Bohorquez, born in Colombia, has been a permanent resident of this country since 1961. He has a Bachelor of Arts degree in Latin-American studies from the University of California at Los Angeles. App. 19-23. 2 Chavez-Salido scored 95 out of 100 on a qualifying oral examination for the Deputy Probation Officer (DPO) II, Spanish-speaking, position and 100 out of 100 on the oral examination for the DPO Trainee position, but was offered neither job solely because of his citizenship. Ybarra was denied employment after passing examinations for the DPO Trainee and DPO II positions. Bohorquez did not pass his initial oral examination for DPO II, but did not appeal his examination results after appellants told him his alienage made an appeal useless. Id., at 19-24. 3 Section 1031(a) provides that a peace officer must be at least 18, fingerprinted, of good moral character, a high school graduate (or the equivalent thereof), physically and mentally healthy, and "a citizen of the United States." 4 After this litigation began, and the District Court had twice declared § 1031(a) unconstitutional, the California Legislature twice amended sections of its Penal Code, removing some positions from the "peace officer" list and adding others. See 490 F.Supp. 984, 986-987, n. 6 (CD Cal. 1980) (listing additions to and deletions from the peace officer list). See also 1980 Cal.Stats., ch. 1340, effective Sept. 30, 1980 (same). The legislature still has never declared what criteria it uses to decide whether a particular government position deserves "peace officer" status. 5 A judge of the California Court of Appeal once noted: "No mystery surrounds extension of the traditional definition of peace officer to such an unrecognizable degree by the Legislature. The Legislature must respond to the interests of various groups. Correctional officers, for example, were granted the status of 'peace officers' in order that they may obtain better group insurance benefits. . . . [B]ecause peace officers appear to have enjoyed better benefits in times past, many employee groups, even tangentially associated with the role of peace officers, have persuaded the Legislature to include them within the term 'peace officer.' " Hetherington v. State Personnel Bd., 82 Cal.App.3d 582, 600, 147 Cal.Rptr. 300, 311 (1978) (Reynoso, J., dissenting). 6 See Purdy & Fitzpatrick v. State, 71 Cal.2d 566, 79 Cal.Rptr. 77, 456 P.2d 645 (1969) (invalidating citizenship requirement for employment on public works); 1970 Cal.Stats., ch. 653, p. 1277, § 1, repealing Art. 2, ch. 2, Pt. 7, Div. 2, Cal.Lab.Code Ann. § 1940 (West 1955) (former citizenship requirement for employment in any department of the State or of any county or city). See generally Comment, The California Exclusion of Permanent Resident Aliens from Appointive Public Office, 11 C.W.L.R. 117, 126-131 (1974) (listing California governmental positions from which permanent resident aliens have and have not been excluded). 7 The Court cannot seriously argue, for example, that the positions of Dental Board inspector, messenger in the State Treasurer's office, Parks and Recreations Department employee, and volunteer fire warden represent "important nonelective positions," see Sugarman v. Dougall, 413 U.S. 634, 647, 93 S.Ct. 2842, 2850, 37 L.Ed.2d 853 (1973), of the type the States historically or constitutionally have reserved for their citizens. Yet even after the legislature's latest amendments, all remain "peace officer" positions from which aliens are excluded by § 1031(a). 8 In Foley v. Connelie, the Court held that the State may require policemen to be citizens because they are "clothed with" what are described as "plenary discretionary powers." 435 U.S., at 297-298, 98 S.Ct., at 1071. Policemen exercise those powers "over people generally" as part of their "pervasive" presence in modern society. Id., at 297-299, 98 S.Ct., at 1071-1072. Because policemen often act "without prior judicial authority," they require a grant of "prophylactic authority" from the State. Id., at 298, 98 S.Ct., at 1071. Exercise of that authority demands a "very high degree of judgment and discretion, the abuse or misuse of which can have serious impact on individuals." Ibid. Ambach v. Norwick, held that a State may bar aliens who have not declared their intent to become citizens from teaching in public schools because teachers perform a similarly significant "governmental function." Schoolteachers, Ambach noted, possess a high "degree of responsibility and discretion" which they exercise to fulfill the government's basic obligation to provide public education. 441 U.S., at 75, 99 S.Ct., at 1593. Furthermore, teachers have "direct, day-to-day contact" with their students, exercise unsupervised discretion over them, act as role models, and influence their students' attitudes about the government and the political process. Id., at 78-79, 99 S.Ct., at 1595-1596. 9 Nor can the Court argue by analogy to Ambach v. Norwick, 441 U.S. 68, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979), that probation officers, like teachers, influence their probationers' "attitudes . . . toward government, the political process, and a citizen's social responsibilities." Id., at 79, 99 S.Ct., at 1596. Such an assertion would ignore the reality of a modern probation officer's life. In 1973, the average federal probation officer supervised nearly 100 offenders. Federal Judicial Center, Probation Time Study 3 (Feb. 26, 1973). Each offender under supervision was accorded between six and eight hours of supervision from his probation officer in a year, or seven to nine minutes per week. Ibid. It blinks reality to suggest that a probation officer subject to these pressures has either the time or the inclination to give his probationers lessons in civics. 10 Until 1966, Cal.Gov't Code Ann. §§ 69500, 68804 required that Superior Court judges and Supreme Court justices be citizens. In 1967, however, those provisions were repealed. 1967 Cal.Stats., ch. 17, pp. 841, 845, §§ 61, 87. As a result, the only remaining restriction on becoming a judge in California is membership in the state bar for a certain number of years. Cal.Const., Art. VI, § 15. After the California Supreme Court's decision in Raffaelli, aliens became eligible for the bar and, hence, to become judges. 11 The Court concedes as much when it notes that "almost every governmental official can be understood as participating in the execution of broad public policies." Ante, at 441, n. 7.

12

454 U.S. 516 102 S.Ct. 781 70 L.Ed.2d 738 TEXACO, INC., et al., Appellants,v.Louise F. SHORT et al. Eden H. POND, Edna H. Bobe and Consolidation Coal Company, Appellants, v. Ulysses G. WALDEN, Jr., et al. Nos. 80-965, 80-1018. Argued Oct. 6, 1981. Decided Jan. 12, 1982. Syllabus The Indiana Dormant Mineral Interests Act, more commonly known as the Mineral Lapse Act, provides that a severed mineral interest that is not used for a period of 20 years automatically lapses and reverts to the current surface owner of the property, unless the mineral owner prior to the end of the 20-year period or within a 2-year grace period after the effective date of the Act (September 2, 1971) files a statement of claim in the local county recorder's office. The "use" of a mineral interest sufficient to preclude its extinction includes actual or attempted production of the minerals, payment of rents or royalties, and payment of taxes. The statute contains one exception to the general rule: If an owner of 10 or more mineral interests in the same county files a statement of claim that inadvertently omits some of those interests, the omitted interests may be preserved by a supplemental filing made within 60 days of receiving notice of the lapse. Appellants whose unused mineral interests had lapsed upon expiration of the grace period under the Act, challenged the constitutionality of the Act in actions brought in Indiana state court. They claimed that under the Fourteenth Amendment the lack of prior notice of the lapse deprived them of property without due process of law, the statute effected a taking of property for public use without just compensation, and the exception for owners of 10 or more mineral interests denied them the equal protection of the law. They also contended that the statute constitutes an impairment of contracts in violation of the Contract Clause. The trial court declared the statute unconstitutional, but the Indiana Supreme Court reversed. Held : 1. The State has the power to enact the kind of statute in issue, and in this instance has not exercised this power in an arbitrary manner. Each of the actions required to avoid an abandonment of a mineral interest furthers the legitimate state goals of encouraging mineral interest owners to develop such interests and of collecting property taxes. Pp. 525-530. 2. The Act does not take property without just compensation in violation of the Fourteenth Amendment. Since the State may treat as abandoned a mineral interest that has not been used for 20 years and for which no statement of claim has been filed, it follows that, after abandonment, the former owner retains no interest for which he may claim compensation. It is the owner's failure to make any use of the property—and not the State's action—that causes the lapse of the property right; there is no "taking" that requires compensation. P.530. 3. Nor does the Act unconstitutionally impair the obligation of contracts. Since appellant mineral owners did not execute any coal and oil leases until after the statutory lapse of their mineral rights, the statute cannot be said to impair a contract that did not exist at the time of its enactment. While appellants' right to enter such an agreement has been impaired, this right is a property, not a contract, right. P. 531. 4. The Act did not extinguish appellants' property without adequate notice in violation of their due process rights. Pp. 531-538. (a) The 2-year grace period provided by the statute forecloses any argument that the statute is invalid because mineral owners may not have had an opportunity to become familiar with its terms. Property owners are charged with knowledge of relevant statutory provisions affecting the control or disposition of their property. Moreover, the greatest deference must be accorded to the judgment of state legislatures as to whether a statutory grace period provides an adequate opportunity for citizens to become familiar with a new law. Here, both the Indiana Legislature and the Indiana Supreme Court have concluded that the 2-year grace period was sufficient to allow property owners to familiarize themselves with the statute and to take appropriate action to protect existing interests. Pp. 531-533. (b) Given appellants' presumed knowledge that their unused mineral interests would lapse unless they filed a statement of claim, appellants had no constitutional right to be advised that the 20-year period of nonuse was about to expire. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865, distinguished. Since the State may impose on a mineral interest owner the burden of using that interest or filing a statement of claim, it follows that the State may impose on him the lesser burden of keeping informed of the use or nonuse of his own property. Pp. 533-538. 5. Since the statutory exception for owners of 10 or more mineral interests furthers the legitimate statutory purpose of encouraging multiple ownership as being more conducive to the actual production of mineral resources, and has no adverse impact on persons like appellants who own fewer mineral interests, the exception does not violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 538-540. Ind., 406 N.E.2d 625, affirmed. John L. Carroll, Evansville, Ind., for appellants. Verner P. Partenheimer, Princeton, N. J., for appellees. Justice STEVENS delivered the opinion of the Court. 1 In 1971 the Indiana Legislature enacted a statute providing that a severed mineral interest that is not used for a period of 20 years automatically lapses and reverts to the current surface owner of the property, unless the mineral owner files a statement of claim in the local county recorder's office.1 The Indiana Supreme Court rejected a challenge to the constitutionality of the statute. Ind., 406 N.E.2d 625 (1980). We noted probable jurisdiction, 450 U.S. 993, 101 S.Ct. 1693, 68 L.Ed.2d 192, and now affirm. 2 As the Indiana Supreme Court explained, the Mineral Lapse Act "puts an end to interests in coal, oil, gas or other minerals which have not been used for twenty years."2 The statute provides that the unused interest shall be "extinguished" and that its "ownership shall revert to the then owner of the interest out of which it was carved."3 The statute, which became effective on September 2, 1971, contained a 2-year grace period in which owners of mineral interests that were then unused and subject to lapse could preserve those interests by filing a claim in the recorder's office.4 3 The "use" of a mineral interest5 that is sufficient to preclude its extinction includes the actual or attempted production of minerals, THE payment of rents or royalties, and any payment of taxes;6 a mineral owner may also protect his interest by filing a statement of claim with the local recorder of deeds.7 The statute contains one exception to this general rule: if an owner of 10 or more interests in the same county files a statement of claim that inadvertently omits some of those interests, the omitted interests may be preserved by a supplemental filing made within 60 days of receiving actual notice of the lapse.8 4 The statute does not require that any specific notice be given to a mineral owner prior to a statutory lapse of a mineral estate. The Act does set forth a procedure, however, by which a surface owner who has succeeded to the ownership of a mineral estate pursuant to the statute may give notice that the mineral interest has lapsed.9 5 Two cases are consolidated in this appeal. The facts in each are stipulated. In No. 80-965, appellants include 11 parties who claim ownership of fractional mineral interests severed in 1942 and in 1944 from a 132-acre tract of land in Gibson County, Ind.; a 12th appellant is the lessee of oil and gas leases executed in 1976 and 1977 by the other appellants. The appellee is the surface owner of the 132-acre tract from which the appellants' mineral interests were carved. The parties stipulated that the appellants had not used the mineral interests for 20 years and had not filed a statement of claim within 2 years of the effective date of the statute. Thus, under the terms of the Dormant Mineral Interests Act, the mineral interests automatically lapsed on September 2, 1973, when the 2-year grace period expired. On April 28, 1977, appellee gave notice that the mineral interests had lapsed.10 Appellants responded by filing statements of claim in the Office of the Recorder of Gibson County. Thereafter, appellee filed this action, seeking a declaratory judgment that the rights of the mineral interest owners had lapsed and were extinguished by reason of the Dormant Mineral Interests Act. 6 In No. 80-1018, the severed mineral estate was created on March 1, 1954. On that date, appellants Pond and Bobe conveyed land to appellees by a warranty deed that contained a reservation of the mineral estate. On June 17, 1976, Pond and Bobe executed a coal mining lease with appellant Consolidated Coal Co. The parties stipulated that, for a 20-year period following the creation of the mineral estate, appellants did not use the interest or file a statement of claim in the Recorder's Office. Thus, on March 1, 1974, a date more than two years after the effective date of the Dormant Mineral Interests Act, a statutory lapse occurred. On March 4, 1977, appellees gave notice of the lapse, both by letter to the appellants and by publication in the Princeton Daily Clarion. The parties jointly filed the instant lawsuit on January 12, 1978, to resolve their conflicting claims to the mineral rights. 7 In each case it is agreed that if the statute is valid, appellants' mineral interests have lapsed because of their failure to produce minerals, pay taxes, or file a statement of claim within the statutory period. In neither case does the agreed statement of facts indicate whether any of the appellants was aware of the enactment of the Mineral Lapse Act, or of its possible effect on his mineral interests, at any time after the enactment of the statute and before the appellees published notice of the lapse of the mineral estates. 8 At all stages of the proceedings, appellants challenged the constitutionality of the Dormant Mineral Interests Act. Appellants claimed that the lack of prior notice of the lapse of their mineral rights deprived them of property without due process of law, that the statute effected a taking of private property for public use without just compensation, and that the exception contained in the Act for owners of 10 or more mineral interests denied them the equal protection of the law; appellants based these arguments on the Fourteenth Amendment of the United States Constitution.11 Appellants also contended that the statute constituted an impairment of contracts in violation of Art. 1, § 10, of the Constitution.12 The state trial court held that the statute deprived appellants of property without due process of law, and effected a taking of property without just compensation.13 9 On appeal, the Indiana Supreme Court reversed. The court first explained the purpose of the Mineral Lapse Act: 10 "The Act reflects the legislative belief that the existence of a mineral interest about which there has been no display of activity or interest by the owners thereof for a period of twenty years or more is mischievous and contrary to the economic interests and welfare of the public. The existence of such stale and abandoned interests creates uncertainties in titles and constitutes an impediment to the development of the mineral interests that may be present and to the development of the surface rights as well. The Act removes this impediment by returning the severed mineral estate to the surface rights owner. There is a decided public interest to be served when this occurs. The extinguishment of such an interest makes the entire productive potential of the property again available for human use." Ind., 406 N.E.2d, at 627. 11 The court rejected the argument that a lapse of a vested mineral interest could not occur without affording the mineral owner prior notice and an opportunity to be heard. The court noted that "[p]rior to any extinguishment the owner of an interest will have had notice by reason of the enactment itself of the conditions which would give rise to an extinguishment and at a minimum a two-year opportunity to prevent those conditions from occurring by filing a statement of claim."14 The Indiana Supreme Court also rejected the argument that the statute effected a taking without just compensation. The court reasoned that, like statutes of limitations, the Mineral Lapse Act was a permissible exercise of the police power of the State.15 Finally, the court rejected the argument that the statute violated the Equal Protection Clause of the Fourteenth Amendment by providing a special exception for owners of 10 or more interests who, through inadvertence, failed to preserve all such interests. The court again noted that the purpose of the statute was to encourage the development of mineral interests, and held that it was rational for the Indiana Legislature to provide special protection for owners of 10 or more mineral interests since those owners are more likely to be able to engage in the actual production of mineral resources.16 12 * Appellants raise several specific challenges to the constitutionality of the Mineral Lapse Act. Before addressing these arguments, however, it is appropriate to consider whether the State has the power to provide that property rights of this character shall be extinguished if their owners do not take the affirmative action required by the State.17 13 In Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, the Court stated: 14 "Property interests, of course, are not created by the Constitution. Rather, they 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." 15 The State of Indiana has defined a severed mineral estate as a "vested property interest," entitled to "the same protection as are fee simple titles."18 Through its Dormant Mineral Interests Act, however, the State has declared that this property interest is of less than absolute duration; retention is conditioned on the performance of at least one of the actions required by the Act. We have no doubt that, just as a State may create a property interest that is entitled to constitutional protection, the State has the power to condition the permanent retention of that property right on the performance of reasonable conditions that indicate a present intention to retain the interest. 16 From an early time, this Court has recognized that States have the power to permit unused or abandoned interests in property to revert to another after the passage of time. In Hawkins v. Barney's Lessee, 5 Pet. 457, 8 L.Ed. 190, the Court upheld a Kentucky statute that prevented a landowner from recovering property on which the defendant had resided for more than seven years under a claim of right. The Court stated: 17 "Such laws have frequently passed in review before this Court; and occasions have occurred, in which they have been particularly noticed as laws not to be impeached on the ground of violating private right. What right has any one to complain, when a reasonable time has been given him, if he has not been vigilant in asserting his rights?" Id., at 466.19 18 Similarly, in Wilson v. Iseminger, 185 U.S. 55, 22 S.Ct. 573, 46 L.Ed. 804, the Court upheld a Pennsylvania statute that provided for the extinguishment of a reserved interest in ground rent if the owner collected no rent and made no demand for payment for a period of 21 years.20 Though the effect of the Pennsylvania statute was to extinguish a fee simple estate of permanent duration, the Court held that the legislation was valid.21 19 In these early cases, the Court often emphasized that the statutory "extinguishment" properly could be viewed as the withdrawal of a remedy rather than the destruction of a right.22 We have subsequently made clear, however, that, when the practical consequences of extinguishing a right are identical to the consequences of eliminating a remedy, the constitutional analysis is the same. El Paso v. Simmons, 379 U.S. 497, 506-507, 85 S.Ct. 577, 582-83, 13 L.Ed.2d 446. The extinguishment of the property owners' "remedy" in Hawkins and Iseminger placed them in precisely the same position as that held by the mineral owners in the instant cases after their interests had lapsed. 20 The Indiana statute is similar in operation to a typical recording statute. Such statutes provide that a valid transfer of property may be defeated by a subsequent purported transfer if the earlier transfer is not properly recorded. In Jackson v. Lamphire, 3 Pet. 280, 7 L.Ed. 679, the Court upheld such a statute, even as retroactively applied to a deed that need not have been recorded at the time delivered. The Court stated: 21 "It is within the undoubted power of state legislatures to pass recording acts, by which the elder grantee shall be postponed to a younger, if the prior deed is not recorded within the limited time; and the power is the same whether the deed is dated before or after the passage of the recording act. Though the effect of such a law is to render the prior deed fraudulent and void against a subsequent purchaser, it is not a law impairing the obligation of contracts; such too is the power to pass acts of limitations, and their effect. Reasons of sound policy have led to the general adoption of laws of both descriptions, and their validity cannot be questioned. The time and manner of their operation, the exceptions to them, and the acts from which the time limited shall begin to run, will generally depend on the sound discretion of the legislature, according to the nature of the titles, the situation of the country, and the emergency which leads to their enactment." Id., at 290. 22 These decisions clearly establish that the State of Indiana has the power to enact the kind of legislation at issue. In each case, the Court upheld the power of the State to condition the retention of a property right upon the performance of an act within a limited period of time. In each instance, as a result of the failure of the property owner to perform the statutory condition, an interest in fee was deemed as a matter of law to be abandoned and to lapse. 23 It is also clear that the State has not exercised this power in an arbitrary manner. The Indiana statute provides that a severed mineral interest shall not terminate if its owner takes any one of three steps to establish his continuing interest in the property. If the owner engages in actual production, or collects rents or royalties from another person who does or proposes to do so, his interest is protected. If the owner pays taxes, no matter how small, the interest is secure. If the owner files a written statement of claim in the county recorder's office, the interest remains viable. Only if none of these actions is taken for a period of 20 years does a mineral interest lapse and revert to the surface owner. 24 Each of the actions required by the State to avoid an abandonment of a mineral estate furthers a legitimate state goal. Certainly the State may encourage owners of mineral interests to develop the potential of those interests; similarly, the fiscal interest in collecting property taxes is manifest. The requirement that a mineral owner file a public statement of claim furthers both of these goals by facilitating the identification and location of mineral owners, from whom developers may acquire operating rights and from whom the county may collect taxes. The State surely has the power to condition the ownership of property on compliance with conditions that impose such a slight burden on the owner while providing such clear benefits to the State.23 II 25 Two of appellants' arguments may be answered quickly. Appellants contend that the Mineral Lapse Act takes private property without just compensation in violation of the Fourteenth Amendment; they also argue that the statute constitutes an impermissible impairment of contracts in violation of the Contract Clause. The authorities already discussed mandate rejection of each of these arguments. 26 In ruling that private property may be deemed to be abandoned and to lapse upon the failure of its owner to take reasonable actions imposed by law, this Court has never required the State to compensate the owner for the consequences of his own neglect. We have concluded that the State may treat a mineral interest that has not been used for 20 years and for which no statement of claim has been filed as abandoned; it follows that, after abandonment, the former owner retains no interest for which he may claim compensation. It is the owner's failure to make any use of the property—and not the action of the State—that causes the lapse of the property right; there is no "taking" that requires compensation. The requirement that an owner of a property interest that has not been used for 20 years must come forward and file a current statement of claim is not itself a "taking." Nor does the Mineral Lapse Act t unconstitutionally impair the obligation of contracts. In the specific cases under review, the mineral owners did not execute the coal and oil leases in question until after the statutory lapse of their mineral rights. The statute cannot be said to impair a contract that did not exist at the time of its enactment. Appellants' right to enter such an agreement of course has been impaired by the statute; this right, however, is a property right and not a contract right. In any event, a mineral owner may safeguard any contractual obligations or rights by filing a statement of claim in the county recorder's office. Such a minimal "burden" on contractual obligations is not beyond the scope of permissible state action.24 III 27 Appellants' primary attack on the Dormant Mineral Interests Act is that it extinguished their property rights without adequate notice. In advancing this argument, appellants actually assert two quite different claims. First, appellants argue that the State of Indiana did not adequately notify them of the legal requirements of the new statute. Second, appellants argue that a mineral interest may not be extinguished unless the surface owner gives the mineral owner advance notice that the 20-year period of nonuse is about to expire. When these two arguments are considered separately, it is clear that neither has merit. A. 28 The first question raised is simply how a legislature must go about advising its citizens of actions that must be taken to avoid a valid rule of law that a mineral interest that has not been used for 20 years will be deemed to be abandoned. The answer to this question is no different from that posed for any legislative enactment affecting substantial rights. Generally, a legislature need do nothing more than enact and publish the law, and afford the citizenry a reasonable opportunity to familiarize itself with its terms and to comply. In this case, the 2-year grace period included in the Indiana statute forecloses any argument that the statute is invalid because mineral owners may not have had an opportunity to become familiar with its terms. It is well established that persons owning property within a State are charged with knowledge of relevant statutory provisions affecting the control or disposition of such property.25 29 It is also settled that the question whether a statutory grace period provides an adequate opportunity for citizens to become familiar with a new law is a matter on which the Court shows the greatest deference to the judgment of state legislatures. See Jackson v. Lamphire, 3 Pet., at 290, 7 L.Ed. 679; Wilson v. Iseminger, 185 U.S., at 62-63, 22 S.Ct., at 575-576. A legislative body is in a far better position than a court to form a correct judgment concerning the number of persons affected by a change in the law, the means by which information concerning the law is disseminated in the community, and the likelihood that innocent persons may be harmed by the failure to receive adequate notice.26 30 In short, both the Indiana Legislature and the Indiana Supreme Court have concluded that a 2-year period was sufficient to allow property owners in the State to familiarize themselves with the terms of the statute and to take any action deemed appropriate to protect existing interests. On the basis of the records in these two proceedings, we cannot conclude that the statute was so unprecedented and so unlikely to come to the attention of citizens reasonably attentive to the enactment of laws affecting their rights that this 2-year period was constitutionally inadequate. We refuse to displace hastily the judgment of the legislature and to conclude that a legitimate exercise of state legislative power is invalid because citizens might not have been aware of the requirements of the law.27 B 31 We have concluded that appellants may be presumed to have had knowledge of the terms of the Dormant Mineral Interests Act. Specifically, they are presumed to have known that an unused mineral interest would lapse unless they filed a statement of claim. The question then presented is whether, given that knowledge, appellants had a constitutional right to be advised presumably by the surface owner—that their 20-year period of nonuse was about to expire. 32 In answering this question, it is essential to recognize the difference between the self-executing feature of the statute and a subsequent judicial determination that a particular lapse did in fact occur. As noted by appellants, no specific notice need be given of an impending lapse. If there has been a statutory use of the interest during the preceding 20-year period, however, by definition there is no lapse—whether or not the surface owner, or any other party, is aware of that use. Thus, no mineral estate that has been protected by any of the means set forth in the statute may be lost through lack of notice. It is undisputed that, before judgment could be entered in a quiet title action that would determine conclusively that a mineral interest has reverted to the surface owner, the full procedural protections of the Due Process Clause—including notice reasonably calculated to reach all interested parties and a prior opportunity to be heard—must be provided. 33 Appellants place primary reliance on our decision in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865. In that case the Court considered the constitutional sufficiency of notice given to the beneficiaries of a common trust fund of a judicial settlement of accounts by the trustee of the fund. The Court held that the notice by publication authorized by the relevant New York statute was not sufficient, since it was not reasonably calculated to apprise the beneficiaries of the pendency of the judicial proceeding. Justice Jackson, writing for the Court, stated: 34 "Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." Id., at 313, 70 S.Ct., at 656. 35 Specifically, the Court held that "[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections," id., at 314, 70 S.Ct., at 657; the notice in Mullane was deficient "not because in fact it fail[ed] to reach everyone, but because under the circumstances it [was] not reasonably calculated to reach those who could easily be informed by other means at hand." Id., at 319, 70 S.Ct., at 659-60. 36 The reasoning in Mullane is applicable to a judicial proceeding brought to determine whether a lapse of a mineral estate did or did not occur, but not to the self-executing feature of the Mineral Lapse Act. The due process standards of Mullane apply to an "adjudication" that is "to be accorded finality." The Court in Mullane itself distinguished the situation in which a State enacted a general rule of law governing the abandonment of property.28 It has long been established that "laws [must] give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly," Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 333, but it has never been suggested that each citizen must in some way be given specific notice of the impact of a new statute on his property before that law may affect his property rights. 37 As emphasized above, appellants do not challenge the sufficiency of the notice that must be given prior to an adjudication purporting to determine that a mineral interest has not been used for 20 years. Appellants simply claim that the absence of specific notice prior to the lapse of a mineral right renders ineffective the self-executing feature of the Indiana statute. That claim has no greater force than a claim that a self-executing statute of limitations is unconstitutional. The Due Process Clause does not require a defendant to notify a potential plaintiff that a statute of limitations is about to run, although it certainly would preclude him from obtaining a declaratory judgment that his adversary's claim is barred without giving notice of that proceeding. 38 Appellants also rely on a series of cases that have required specific notice and an opportunity to be heard before a driver's license is suspended for failure to post security after an accident,29 before property is seized pursuant to a prejudgment replevin order,30 or before service is terminated by a public utility for failure to tender payment of amounts due.31 In each of those cases, however, the property interest was taken only after a specific determination that the deprivation was proper.32 In the instant case, the State of Indiana has enacted a rule of law uniformly affecting all citizens that establishes the circumstances in which a property interest will lapse through the inaction of its owner. None of the cases cited by appellants suggests that an individual must be given advance notice before such a rule of law may operate.33 39 We have held that the State may impose on an owner of a mineral interest the burden of using that interest or filing a current statement of claim. We think it follows inexorably that the State may impose on him the lesser burden of keeping informed of the use or nonuse of his own property. We discern no procedural defect in this statute.34 IV 40 The Indiana statute allows a mineral owner to retain an interest, notwithstanding a failure to file a statement of claim within the statutory period, if he satisfies four specific conditions: (1) he must own at least 10 mineral interests in the county; (2) he must have made a diligent effort to preserve all his interests and have succeeded in preserving some; (3) his failure to preserve the interest in question must have been through "inadvertence"; and (4) he must file a statement of claim within 60 days after receiving notice that the mineral interest has lapsed.35 Appellants contend that this special exception violates the Equal Protection Clause of the Fourteenth Amendment. 41 There is nothing in the records to tell us how often, if ever, this statutory exception has been invoked. Nor do the records indicate the number of persons who own 10 or more interests in any one county in Indiana. Since mineral interests may be bought and sold like other property, and often have little value, the composition of the class benefited by this exception is subject to constant change. Unlike those classes that are defined by personal characteristics, anyone who purchases 10 fractional mineral interests in the same county, of whatever value, can join this favored class. 42 Although appellants do not suggest that they are financially unable to join the special class, or that its existence has any adverse impact on their own rights—or indeed that excision of the exception from the Act would provide them with any benefit whatsoever—they nevertheless argue that it is basically unfair to treat owners of multiple interests more favorably than they are treated. The Indiana Supreme Court has explained, however, that the State has an interest in encouraging the assembly of multiple interests in a single ownership because such owners are more likely to be able to engage in the actual production of mineral resources.36 This state interest is unquestionably legitimate. Thus, a statutory provision that encourages multiple ownership—by giving that kind of ownership additional protection against forfeiture after it has been assembled—is related to the central purpose of the statute. Since the exception furthers a legitimate statutory purpose, and has no adverse impact on persons like the appellants who own fewer mineral interests, the exception does not violate the Equal Protection Clause of the Fourteenth Amendment. 43 The judgment of the Supreme Court of Indiana is affirmed. 44 It is so ordered. 45 Justice BRENNAN, with whom Justice WHITE, Justice MARSHALL, and Justice POWELL join, dissenting. 46 There is no measurable dispute in these cases concerning Indiana's power to control, define, and limit interests in land within its boundaries. Nor is there any question that Indiana has a legitimate interest in encouraging the productive use of land by establishing a registration system to identify the owners of mineral rights. Nor indeed is there any question that extinguishment of a mineral owner's rights may be an appropriate sanction for a failure to register. The question presented here is simply whether the State of Indiana has deprived these appellants of due process of law by extinguishing their pre-existing property interests without regard to whether they knew, and without providing any meaningful mechanism by which they might have learned, of the imminent taking of their property or their obligations under the law. 47 * The State of Indiana has historically afforded owners of incorporeal interests in minerals all the protections and privileges enjoyed by any owner of an estate in land held in fee simple. The mineral interests of the appellants here were thus assuredly within the scope of the dual constitutional guarantees that there be no taking of property without just compensation, and no deprivation of property without the due process of law. By the statute at issue in these cases, Indiana has imposed upon the owners of mineral interests the requirement that they pay taxes, or put their interest to productive use, or make their identity known by filing a statement of claim every 20 years. If the mineral interest owner fails to comply with these conditions, his interest is extinguished, and the mineral rights in the land are, by operation of law, merged with the surface estate, to the benefit of the surface owner.1 48 As to one class of mineral interest owners, there is no question that the statute is a constitutionally proper exercise of the State's power. Every mineral interest in land carved from the fee after the effective date of the statute was carved subject to the statute's limitations. In prospective application the statute simply provides that any instrument purporting to transfer a mineral interest carries with it the implicit condition that unless the transferee uses the land within the meaning of the statute, his interest will revert to the transferor. It is only where the State seeks to change the fundamental nature of a property interest already in the hands of its owner that the operative restrictions of both the Takings Clause and the Due Process Clause come into play. 49 If Indiana were by simple fiat to "extinguish" all pre-existing mineral interests in the State, or to transfer those interests to itself, to surface owners, or indeed to anyone at all, that action would surely be unconstitutional and unenforceable—at least absent just compensation. That is not the case here for, as the Court points out, ante, at 529, 531, the State has offered the owner of a mineral interest several options by which he may preserve his interest, and a grace period in which he may do so. Because the State has provided these options, the Court concludes that there has been no unconstitutional deprivation of property: "It is the owner's failure to make any use of the property—and not the action of the State—that causes the lapse of the property right. . . ." Ante, at 530. The Court disdains any serious consideration of whether the saving options afforded by the State are in any meaningful way within the reach of the mineral interest owners.2 In this respect the Court errs, for the Due Process Clause of the Fourteenth Amendment requires the Court to make precisely the inquiry the Court avoids. As we have noted: 50 "It does not follow, however, that what [a State] can legislate prospectively it can legislate retrospectively. The retrospective aspects of legislation, as well as the prospective aspects, must meet the test of due process, and the justifications for the latter may not suffice for the former." Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16-17, 96 S.Ct. 2882, 2892-93, 49 L.Ed.2d 752 (1976). 51 There is much to be said for the maxim upon which the Court places its principal reliance in upholding the retrospective application of this statute: that each citizen may be charged with knowledge of the law.3 The justification for that rule is its necessity. As a practical matter, a State cannot afford notice to every person who is or may be affected by a change in the law. But an unfair and irrational exercise of state power cannot be transformed into a rational exercise merely by invoking a legal maxim or presumption. If it is to survive the scrutiny that the Constitution requires us to afford laws that deprive persons of substantial interests in property, an enactment that relies on that presumption of knowledge must evidence some rational accommodation between the interests of the State and fairness to those against whom the law is applied. Cf. Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2330, 37 L.Ed.2d 63 (1973). By acknowledging that there is some limit to the exercise of legislative power to transform the interests of persons in property, we do not depart from the principle of utmost deference to the judgment of the legislature to reach those accommodations in the first instance. But the Constitution puts even our most cherished legal maxims and presumptions to the test of fairness and rationality in light of common experience. "[I]n passing on the constitutionality of a state law, its effect must be judged in the light of its practical application to the affairs of men as they are ordinarily conducted." North Laramie Land Co. v. Hoffman, 268 U.S. 276, 283, 45 S.Ct. 491, 494, 69 L.Ed. 953 (1925). 52 Thus, we have recognized certain very limited circumstances in which a State's reliance on the maxim that a man may be presumed to know the law is not consistent with the restrictions imposed by the Constitution on legislative action. In Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), a municipal ordinance made it an offense for any convicted felon to remain in the city of Los Angeles for more than five days without registering with the police. We held that the ordinance, which purported to deprive a person of liberty for failing to register, could not be applied to a person who neither knew, nor could reasonably have been expected to know, of his legal obligation. As we noted: 53 "[W]e deal here with conduct that is wholly passive—mere failure to register. It is unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed. The rule that 'ignorance of the law will not excuse' is deep in our law, as is the principle that of all the powers of local government, the police power is 'one of the least limitable.' On the other hand, due process places some limits on its exercise. Engrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act. . . . 54 "Registration laws are common and their range is wide. Many such laws are akin to licensing statutes in that they pertain to the regulation of business activities. But the present ordinance is entirely different. Violation of its provisions is unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking. . . . [T]his appellant on first becoming aware of her duty to register was given no opportunity to comply with the law and avoid its penalty, even though her default was entirely innocent." Id., at 228-229, 78 S.Ct., at 242-43 (emphasis added) (citations omitted). 55 There is, of course, no general requirement that a State take affirmative steps to inform its citizenry of their obligations under a particular statute before imposing legal sanctions for violation of that statute. Lambert suggests no such general requirement. Rather, that case highlights the limited circumstances in which the State's reliance on a presumption of knowledge strains the constitutional requirement that the liberty and property of persons be dealt with fairly and rationally by the State. The State's power to impose sanctions on individuals is to be tested in part against the rationality of the proposition that those individuals were or could have been aware of their legal obligations. The present cases, like Lambert, involve the necessity of notice in the context of a registration statute sufficiently unusual in character, and triggered in circumstances so commonplace, that an average citizen would have no reason to regard the triggering event as calling for a heightened awareness of one's legal obligations.4 56 The opinion of the Court suggests that the presumption of knowledge of the law is not unreasonable in cases such as these because it is a customary feature of property ownership that the landowner monitor the Acts of the legislature that may affect his interest. Ante, at 532. The Court would appear to treat property owners as businessmen, of whom we do indeed expect the greatest attentiveness to regulatory obligations in the conduct of their business affairs. But neither our cases nor our experience supports the Court's supposition about the diligence reasonably expected of property owners. Property owners have historically been allowed to rest easy in the knowledge that their holding is secure, absent some affirmative indication to the contrary; to rely on the general practice that "[n]otice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice IS required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act." Lambert v. California, 355 U.S., at 228, 78 S.Ct., at 243. Surely no contrary understanding of the obligations of property ownership could be attributed to the mineral interest owners of Indiana. It was their historic complacency, heretofore undisturbed by statutory obligation, that prompted the State of Indiana to install the regulatory regime at issue here. 57 The Constitution does, of course, permit the interests of a property owner to be adversely affected upon notice less exacting than those mechanisms of notification deemed minimally acceptable in other contexts. But the rationale for this standard of "lesser notice" with respect to matters involving land bears restating for the contrast that it presents with the circumstances of these cases: 58 "[P]ublication traditionally has been acceptable as notification supplemental to other action which in itself may reasonably be expected to convey a warning. The ways of an owner with tangible property are such that he usually arranges means to learn of any direct attack on his possessory or proprietary rights. Hence, libel of a ship, attachment of a chattel or entry upon real estate in the name of law may reasonably be expected to come promptly to the owner's attention. When the state within which the owner has located such property seizes it for some reason, publication or posting affords an additional measure of notification. A state may indulge the assumption that one who has left tangible property in the state either has abandoned it, in which case proceedings against it deprive him of nothing, or that he has left some caretaker under a duty to let him know that it is being jeopardized." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 316, 70 S.Ct. 652, 658, 94 L.Ed. 865 (1950) (emphasis added; citations omitted). 59 It may be reasonable to expect property owners to maintain sufficient awareness of their property to mark those situations in which the property is physically disturbed with some scrutiny of their duties and obligations under the law. The owners of the incorporeal interests at issue here are hardly in a similar situation. There is no event or circumstance to which they might have turned their powers of observation; nothing has been directly attacked, seized, possessed, used, or depleted. The only "caretaker" who could have guarded the interest of appellants from the silent actions of the legislature and the surface owner, is a caretaker charged with the responsibility of daily surveillance over happenings in the state legislature. In light of "the affairs of men as they are ordinarily conducted," a State may not constitutionally attribute to each citizen the foresight, or the continuing duty, to maintain a lobbyist in the state capital in order to guard his property from extinguishment. 60 The Court also relies on cases involving the application of legislatively foreshortened limitations periods to causes of actions that have already vested. Ante, at 532. But those cases illustrate, rather than refute, the constitutional principle that reliance on the maxim of presumed knowledge of the law is limited by the reasonableness of applying that maxim in a particular class of cases. The Court has upheld retroactive adjustments to a limitations period only when the legislature has provided a grace period during which the potential plaintiff could reasonably be expected to learn of the change in the law and then initiate his action. In the context of a retrospective statute of limitations, a reasonable grace period provides an adequate guarantee of fairness. Having suffered the triggering event of an injury, a potential plaintiff is likely to possess a heightened alertness to the possibly changing requirements of the law bearing on his claim. Because redress necessarily depends on recourse to the State's judicial system, the State is free to condition its intervention on rules of procedure, and further, to impose on the potential plaintiff the obligation to monitor changes in those rules. Plaintiffs, and their attorneys, are so aware. 61 The situation of appellants here is not at all similar. The statute does not operate upon the dormant mineral interest owner after he has suffered some direct affront to his property such that he might reasonably be called upon to increase his awareness of his legal obligations. The mineral interest owner has not been derelict in pressing rights against third parties such that the State may reasonably assume he has abandoned his interest. The mineral interest owner has no reason to anticipate an occasion for state assistance, and thus no reason to monitor the ground rules upon which the State conditions its aid. In these cases the State has taken the initiative in seeking to regulate heretofore unregulated incorporeal interests in land under circumstances in which a need for heightened attentiveness to the law cannot reasonably be apprehended by the mineral interest owner. In these circumstances, the empirical foundation of the assertion that passage of a statute will create knowledge of its provisions is at its weakest. 62 This does not end the inquiry, for the State may have an identifiable interest in not making provision for notice in a particular circumstance. If there were such an interest, the Constitution would not lightly supplant the legislative judgment. I thus turn to the asserted interests of the State in the procedure established here. II 63 It is plain that that sheer impracticality makes it implausible to expect the State itself to apprise its citizenry of the enactment of a statute of general applicability. The State may, however, feasibly provide notice when it asserts an interest directly adverse to particular persons, and may in that circumstance be constitutionally compelled to do so. That is not the situation presented in these cases, for the mineral interest owner's failure to comply with the statute results in neither a fine nor an escheat. Rather, his interest is effectively transferred to the surface owner. While the State is not disinterested, as a policy matter, in whether the mineral interest owner files a notice of claim, it sanctions a failure to comply by adjusting the relative rights of the mineral interest owner as against another citizen. In this context it is again helpful to examine—and contrast—the reasons supporting the lack of notice in the context of retrospectively applied limitations periods. 64 First, statutes of limitations "are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost." Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628 (1945). The very interest asserted by the State in imposing a statute of limitations avoiding trial of stale claims—would be defeated by extending the time in which the plaintiff may bring his suit until such time as he may learn of the existence of the statute or the fact that it may soon run. In addition, with respect to statutes of limitations, pre-expiration notice is, as a practical matter, impossible: The potential defendant may not be aware of the potential plaintiff's injury, let alone the plaintiff's future intention to sue. Under these circumstances the potential defendant cannot be expected to monitor the law on behalf of his future—perhaps unknown—adversary. In sum, a State need not make provision for notice with respect to the retroactive application of a statute where it would defeat a legitimate State interest, or would be infeasible in the context of the statutory scheme. 65 In these cases, Indiana asserts an interest in ensuring the productive use of land within its boundaries, and particularly in promoting the exploitation of land containing energy resources such as coal, gas, and oil. The existence of stale and abandoned mineral interests impedes the development of those mineral resources, and hinders the development of the surface as well, by preventing the willing buyer from making contact with a willing seller. To facilitate the operation of the market with respect to mineral development, Indiana has required, by the statute at issue here, that the mineral interest owner file a statement of his claim once every 20 years, or suffer extinguishment of his unused interest. This minimal burden on the mineral rights owner is intended to ensure that the interest owner is identifiable, and thus suffices to maintain his accessibility to potential purchasers. Should the notice not be filed, the State's interest in identification is equally well served: the surface owner, presumably identified readily by virtue of his interest in a parcel of tangible property, becomes the beneficiary of the mineral interest owner's default. By facilitating identification of the owners of the mineral interest, the statute permits the willing buyer—presumably someone who would wish to put the land to productive use—to locate the presumably willing seller, and thus reach the type of deal that could lead to an economically productive use of the land. With respect to the treatment of mineral interest owners, such as appellants here, whose 20-year period had run or partially run as of the date of the enactment, the State's interest is no different. Although the operative period may be abbreviated, the State seeks only to ensure either use, or identification. 66 It is difficult to conceive how the State's interest is served by not requiring the surface owner to notify the mineral rights owner before taking title to his interest; I do not understand either the private appellees, or the State of Indiana as intervenor, to identify any affirmative state interest in failing to provide for pre-extinguishment notice. It might be supposed that a requirement of pre-extinguishment notice by the surface owner would present an untoward economic burden on the surface owner that would impede the purposes of the statute or would otherwise be inconsistent with the statutory framework. But it is plain on the face of the statute that this is not so. 67 Although the statute is self-executing as to one class of mineral interest owners, notice is required before the interests of another class of mineral interest owners are terminated. If the mineral interest owner is one who owns 10 mineral interests in the county and has made diligent effort to preserve his interest, and his failure to preserve is inadvertent, he is afforded the opportunity to file a statement of claim "within sixty (60) days after publication of notice as provided in section seven [32-5-11-7] herein, if such notice is published, and if no such notice is published, within sixty (60) days after receiving actual knowledge that such mineral interest had lapsed."5 Ind.Code § 32-5-11-5(4) (1976). The person charged with the responsibility of providing notice by publication to a holder of 10 interests or more, is, of course, the surface owner. And indeed, the statute sets forth explicitly the manner in which such notice by publication is to be made: 68 "Any person who will succeed to the ownership of any mineral interest, upon the lapse thereof, may give notice of the lapse of such mineral interest by publishing the same in a newspaper of general circulation in the county in which such mineral interest is located, and, if the address of such mineral interest owner is shown of record or can be determined upon reasonable inquiry, by mailing within ten days after such publication a copy of such notice to the owner of such mineral interest. The notice shall state the name of the owner of such mineral interest, as shown of record, a description of the land, and the name of the person giving such notice. If a copy of such notice, together with an affidavit of service thereof, shall be promptly filed in the office of the Recorder of Deeds in the county wherein such land is located, the record thereof shall be prima facie evidence, in any legal proceedings, that such notice was given." Ind.Code § 32-5-11-6 (1976). 69 Because no surface property owner could claim clear title to the mineral interest absent such notice—or else a potential purchaser would suffer the possibility that some holder of 10 or more interests might later come forward to claim his rights such notice is, in practical operation, likely to be provided in every case. The only difficulty is that as construed by the Court today, the statutory notice comes too late for mineral interest holders in the position of appellants to assert their continued interest in their property rights. Because it is clear to me that a form of pre-extinguishment notice, procedurally comparable to that statutorily provided with respect to owners of 10 interests or more, is entirely consistent with the asserted legislative purpose, I would hold that such notice was constitutionally required before a person, otherwise without notice of his obligations under the statute, might be deprived of his property "by operation of law." III 70 In the exercise of a State's police powers, and perhaps particularly with respect to matters involving the regulation of land, we owe the judgments of state legislatures great deference. Nevertheless, the Due Process Clause of the Fourteenth Amendment was designed to guard owners of property from the wholly arbitrary actions of state governments. As applied retrospectively to extinguish the rights of mineral interest owners for their failure to have made use of their interests within a prior 20-year period, Indiana's statutory scheme would likely effect an unlawful taking of property absent the proviso that such mineral interest owners could preserve their rights by filing a notice of claim within the 2-year grace period. Given the nature of the scheme established, there is no discernible basis for failing to afford those owners such notice as would make the saving proviso meaningful. As applied to mineral interest owners who were without knowledge of their legal obligations, and who were not permitted to file a saving statement of claim within some period following the giving of statutory notice by the surface owner, the statute operates unconstitutionally. In my view, under these circumstances, the provision of no process simply cannot be deemed due process of law. I respectfully dissent. 1 The statute is entitled the Dormant Mineral Interests Act, and is more commonly known as the Mineral Lapse Act. Ind.Code §§ 32-5-11-1 through 32-5-11-8 (1976), as added by 1971 Ind.Acts, Pub.L. 423, § 1. 2 Ind., 406 N.E.2d, at 627. 3 "Any interest in coal, oil and gas, and other minerals, shall, if unused for a period of 20 years, be extinguished, unless a statement of claim is filed in accordance with section five hereof [sic], and the ownership shall revert to the then owner of the interest out of which it was carved." Ind.Code § 32-5-11-1 (1976). 4 See n. 7, infra. 5 As defined by the Act: "A mineral interest shall be taken to mean the interest which is created by an instrument transferring, either by grant, assignment, or reservation, or otherwise an interest, of any kind, in coal, oil and gas, and other minerals." Ind.Code § 32-5-11-2 (1976). The Indiana Supreme Court described the nature of this interest as follows: "Interests or estates in oil, gas, coal and other minerals lying beneath the surface of the land are interests in real estate for our purposes here, and as such are entitled beyond question to the firmest protection of the Constitution from irrational state action. They are vested property interests separate and distinct from the surface ownership. The State has no power to deprive an owner of such an interest without due process of law. They are entitled to the same protection as are fee simple titles. They are themselves of great utility and benefit to the society as a means of facilitating the development of natural resources." Ind., 406 N.E.2d, at 627. 6 "A mineral interest shall be deemed to be used when there are any minerals produced thereunder or when operations are being conducted thereon for injection, withdrawal, storage or disposal of water, gas or other fluid substances, or when rentals or royalties are being paid by the owner thereof for the purpose of delaying or enjoying the use or exercise of such rights or when any such use is being carried out on any tract with which such mineral interest may be unitized or pooled for production purposes, or when, in the case of coal or other solid minerals, there is production from a common vein or seam by the owners of such mineral interests, or when taxes are paid on such mineral interest by the owner thereof. Any use pursuant to or authorized by the instrument creating such mineral interest shall be effective to continue in force all rights granted by such instrument." Ind.Code § 32-5-11-3 (1976). 7 "The statement of claim provided in section one above shall be filed by the owner of the mineral interest prior to the end of the twenty year period set forth in section two [sic] or within two years after the effective date of this act, whichever is later, and shall contain the name and address of the owner of such interest, and description of the land, on or under which such mineral interest is located. Such statement of claim shall be filed in the office of the Recorder of Deeds in the county in which such land is located. Upon the filing of the statement of claim within the time provided, it shall be deemed that such mineral interest was being used on the date the statement of claim was filed." Ind.Code § 32-5-11-4 (1976). 8 "Failure to file a statement of claim within the time provided in section 4 shall not cause a mineral interest to be extinguished if the owner of such mineral interest: "1) was at the time of the expiration of the period provided in section four, the owner of ten or more mineral interests, as above defined, in the county in which such mineral interest is located, and; "2) made diligent effort to preserve all of such interests as were not being used, and did within a period of ten years prior to the expiration of the period provided in section 4 preserve other mineral interests, in said county, by the filing of statements of claim as herein required, and; "3) failed to preserve such interest through inadvertence, and; "4) filed the statement of claim herein required, within sixty (60) days after publication of notice as provided in section seven herein [sic], if such notice is published, and if no such notice is published, within sixty (60) days after receiving actual knowledge that such mineral interest had lapsed." Ind.Code § 32-5-11-5 (1976). 9 "Any person who will succeed to the ownership of any mineral interest, upon the lapse thereof, may give notice of the lapse of such mineral interest by publishing the same in a newspaper of general circulation in the county in which such mineral interest is located, and, if the address of such mineral interest owner is shown of record or can be determined upon reasonable inquiry, by mailing within ten days after such publication a copy of such notice to the owner of such mineral interest. The notice shall state the name of the owner of such mineral interest, as shown of record, a description of the land, and the name of the person giving such notice. If a copy of such notice, together with an affidavit of service thereof, shall be promptly filed in the office of the Recorder of Deeds in the county wherein such land is located, the record thereof shall be prima facie evidence, in any legal proceedings, that such notice was given." Ind.Code § 32-5-11-6 (1976). 10 Appellee published a "notice of lapse of mineral interest" in the Star Echo, a newspaper published at Owensville, Ind. On May 6, 1977, appellee mailed a similar notice to each of the appellants, except the oil and gas lessee. 11 The Fourteenth Amendment provides in part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The Fifth Amendment prohibition against the taking of private property for public use without just compensation applies against the States through the Fourteenth Amendment. Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 450, 66 L.Ed.2d 358. 12 "No State shall . . . pass any Bill of Attainder, ex post facto law, or Law impairing the Obligations of Contracts, or grant any Title of Nobility." 13 App. to Juris. Statement in No. 80-965, p. A-14; App. to Juris. Statement in No. 80-1018, p. A-16. 14 Ind., 406 N.E.2d, at 629. The court distinguished Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865, and Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90, which had been relied on by the trial court, on the ground that these cases set forth notice requirements for adjudicatory proceedings, and not for a self-executing statute that uniformly affected all parties within the State. 15 "The purposes of this Act as stated above at the beginning of this opinion are to remedy uncertainties in titles and to facilitate the exploitation of energy sources and other valuable mineral resources. The dependence of local economies upon the mineral recovery industry and the entire State upon limited fossil fuel resources illustrates the public nature of these purposes. The objectives are valid and similar to those served by acts of limitation and the law of adverse possession. In limiting its incursion upon mineral rights to those which have been unused in the statutory sense for as long as twenty years, and in granting a two year period of grace after the enactment of the statute to preserve interests, the Legislature adopted means which are rationally related to such objectives, and which themselves provide a reasonable time and a simple and inexpensive method, taking into consideration the nature of the case, for preserving such interests. We find that this Act is within the police power of the states and does not unconstitutionally impair the obligation of contracts." Ind., 406 N.E.2d, at 630-631. The court also rejected an argument that the statute effected a taking without compensation in violation of the State Constitution and state eminent domain theory, on the ground that the State did not acquire the mineral interests for its own use and benefit. The court emphasized that the Mineral Lapse Act does not "involve the injury to private property through conduct or activities of governmental agents or others having and exercising the power of eminent domain"; rather, the statute declares that "a lapse of a mineral interest will occur in the event of specified conditions and circumstances." Ind., 406 N.E.2d, at 631. 16 Several State Supreme Courts, considering similar state statutes, have reached a result contrary to that of the Indiana Supreme Court. See Wilson v. Bishop, 82 Ill.2d 364, 45 Ill.Dec. 171, 412 N.E.2d 522 (1980); Contos v. Herbst, 278 N.W.2d 732 (Minn.1979), appeal dism'd sub. nom. Prest v. Herbst, 444 U.S. 804, 100 S.Ct. 24, 62 L.Ed.2d 17; Wheelock v. Heath, 201 Neb. 835, 272 N.W.2d 768 (1978); Chicago & N. W. Transportation Co. v. Pedersen, 80 Wis.2d 566, 259 N.W.2d 316 (1977). But see Van Slooten v. Larsen, 410 Mich. 21, 299 N.W.2d 704 (1980). 17 Appellants do not specifically contend that the Mineral Lapse Act is an impermissible exercise of the legislative power of the State. Appellants argue, however, that the State has irrationally required extraction in 20 years of a resource that took "a millennia to create," Brief for Appellants in No. 80-965, p. 17, and has impermissibly transferred a fee interest in property from one private party to another. Id., at 26. 18 See n. 5, supra. 19 Much of what Justice Johnson wrote for the Court in that case is relevant today: "It is argued, that limitation laws, although belonging to the lex fori, and applying immediately to the remedy, yet indirectly they effect a complete divesture and even transfer of right. This is unquestionably true, and yet in no wise fatal to the validity of this law. The right to appropriate a derelict is one of universal law, well known to the civil law, the common law, and to all law: it existed in a state of nature, and is only modified by society, according to the discretion of each community. What is the evidence of an individual having abandoned his rights or property? It is clear that the subject is one over which every community is at liberty to make a rule for itself. . . ." 5 Pet., at 467. After observing that "the state of Kentucky has established the rule of seven years negligence to pursue a remedy," the Court noted that such a period was not unprecedented. The Court stated: "In the early settlement of the country, the man who received a grant of land and failed, at first in three, and afterwards in five years, to seat and improve it, was held to have abandoned it: it received the denomination of lapsed land, was declared to be forfeited (Mercer's Abr.); and any one might take out a grant for it." Id., at 467-468 (emphasis added). 20 The Court specifically noted that, as a matter of state law, the reserved interest in ground rent had the characteristics of a fee simple estate of permanent duration. The Court described the interest as follows: "It is defined to be a rent reserved to himself and his heirs by the grantor of land, out of the land itself. It is not granted like an annuity or rent charge, but is reserved out of a conveyance of the land in fee. It is a separate estate from the ownership of the ground, and is held to be real estate, with the usual characteristics of an estate in fee simple, descendible, devisable, alienable." 185 U.S., at 59, 22 S.Ct., at 574. 21 The Court also held that the statute could apply to interests created before the enactment of the statute, since the statute contained a reasonable grace period in which owners could protect their rights. "It may be properly conceded that all statutes of limitation must proceed on the idea that the party has full opportunity afforded him to try his right in the courts. A statute could not bar the existing rights of claimants without affording this opportunity; if it should attempt to do so, it would not be a statute of limitations, but an unlawful attempt to extinguish rights arbitrarily, whatever might be the purport of its provisions. It is essential that such statutes allow a reasonable time after they take effect for the commencement of suits upon existing causes of action; though what shall be considered a reasonable time must be settled by the judgment of the legislature, and the courts will not inquire into the wisdom of its decision in establishing the period of legal bar, unless the time allowed is manifestly so insufficient that the statute becomes a denial of justice." Id., at 62-63, 22 S.Ct., at 575-76. The Court in Iseminger, id., at 63, repeated the statement of Chief Justice Waite in Terry v. Anderson, 95 U.S. 628, 632-633, 24 L.Ed. 365, that "[t]his court has often decided that statutes of limitation affecting existing rights are not unconstitutional, if a reasonable time is given for the commencement of an action before the bar takes effect." 22 In considering the validity of statutes such as those at issue in that case, the Court in Iseminger stated: "Such statutes, like those forbidding perpetuities and the statute of frauds, do not, in one sense, destroy the obligation of contracts as between the parties thereto, but they remove the remedies which otherwise would be furnished by the courts." 185 U.S., at 61, 22 S.Ct., at 575. See also Terry v. Anderson, supra, at 634, 24 L.Ed. 365. 23 In Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568, the Court upheld the power of the State of Virginia to destroy ornamental cedar trees on private property that threatened the State's thriving apple industry. The Court stated: "It will not do to say that the case is merely one of a conflict of two private interests and that the misfortune of apple growers may not be shifted to cedar owners by ordering the destruction of their property; for it is obvious that there may be, and that here there is, a preponderant public concern in the preservation of one interest over the other. And where the public interest is involved preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property." Id., at 279-280, 48 S.Ct., at 247-48 (citations omitted). 24 See Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413; El Paso v. Simmons, 379 U.S. 497, 85 S.Ct. 577, 13 L.Ed.2d 446. 25 As stated in North Laramie Land Co. v. Hoffman, 268 U.S. 276, 283, 45 S.Ct. 491, 494, 69 L.Ed. 953: "All persons are charged with knowledge of the provisions of statutes and must take note of the procedure adopted by them; and when that procedure is not unreasonable or arbitrary there are no constitutional limitations relieving them from conforming to it. This is especially the case with respect to those statutes relating to the taxation or condemnation of land. Such statutes are universally in force and are general in their application, facts of which the land owner must take account in providing for the management of his property and safeguarding his interest in it." See also Anderson National Bank v. Luckett, 321 U.S. 233, 243, 64 S.Ct. 599, 604, 88 L.Ed. 692. 26 Moreover, the adequacy of the 2-year grace period for Indiana property owners can be evaluated more reliably by the Indiana Supreme Court than by this Court. 27 For these reasons, we reject the suggestion in the dissenting opinion that the Indiana statute is invalid because it does not adequately protect citizens from "the silent actions of the legislature." Post, at 549. This proposition is squarely at odds with the established principle that "[a]ll persons having property located within a state and subject to its dominion must take note of its statutes affecting the control or disposition of such property and of the procedure which they set up for those purposes." Anderson National Bank v. Luckett, supra, at 243, 64 S.Ct., at 605; see n. 25, supra. Additional publication of the provisions of the Act—which the dissent admits would be constitutionally sufficient, see post, at 542-544, n. 2—was not constitutionally required. 28 "The ways of an owner with tangible property are such that he usually arranges means to learn of any direct attack upon his possessory or proprietary rights. Hence, libel of a ship, attachment of a chattel or entry upon real estate in the name of law may reasonably be expected to come promptly to the owner's attention. When the state within which the owner has located such property seizes it for some reason, publication or posting affords an additional measure of notification. A state may indulge the assumption that one who has left tangible property in the state either had abandoned it, in which case proceedings against it deprive him of nothing, cf. Anderson National Bank v. Luckett, 321 U.S. 233, 64 S.Ct. 599, 88 L.Ed. 692; Security Savings Bank v. California, 263 U.S. 282, 44 S.Ct. 108, 68 L.Ed. 301, or that he has left some caretaker under a duty to let him know that it is being jeopardized. Ballard v. Hunter, 204 U.S. 241, 27 S.Ct. 261, 51 L.Ed. 461; Huling v. Kaw Valley R. Co., 130 U.S. 559, 9 S.Ct. 603, 32 L.Ed. 1045. As phrased long ago by Chief Justice Marshall in The Mary, 9 Cranch 126, 144, 3 L.Ed. 678, 'It is the part of common prudence for all those who have any interest in [a thing], to guard that interest by persons who are in a situation to protect it.' " 339 U.S., at 316, 70 S.Ct., at 658. The Court in Mullane emphasized that "[i]n the case before us there is, of course, no abandonment." Ibid. The dissent attempts to distinguish Mullane on the ground that, unlike the tangible interests that the Court in that case stated could be subject to an assumption of abandonment, the present cases concern "incorporeal interests" that have not been "directly attacked, seized, possessed, used, or depleted." Post, at 548, 549. We do not believe, however, that the State's assumption of abandonment in these cases is improper. As the Indiana Supreme Court described, interests or estates in oil, gas, coal, and other minerals lying beneath the surface of the land are "interests in real estate," Ind., 406 N.E.2d, at 627; oil, gas, coal, and other minerals are tangible interests that may be used and developed by a mineral owner. Moreover, the length of the period that is afforded to a mineral owner to use the interest, the variety and minimal extent of the actions that constitute a statutory use, and the length of the statutory grace period are sufficient to entitle the State to indulge in the assumption that if no statutory use is made in a 20-year period and no statement of claim is filed in the 2-year grace period, if applicable—the mineral owner has abandoned the property. We need not decide today whether the State may indulge in a similar assumption in cases in which the statutory period of nonuse is shorter than that involved here, or in which the interest affected is such that concepts of "use" or "nonuse" have little meaning. 29 Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90. 30 Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556. 31 Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30. 32 The nature of the state determination in Fuentes and Craft is clear. While less so in Bell, the Court specifically noted in that case: "The main thrust of Georgia's argument is that it need not provide a hearing on liability because fault and liability are irrelevant to the statutory scheme. We may assume that were this so, the prior administrative hearing presently provided by the State would be 'appropriate to the nature of the case.' Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). But '[i]n reviewing state action in this area . . . we look to substance, not to bare form, to determine whether constitutional minimums have been honored.' Willner v. Committee on Character, 373 U.S. 96, 106-107, 83 S.Ct. 1175, 1181-82, 10 L.Ed.2d 224 (1963) (concurring opinion). And looking to the operation of the State's statutory scheme, it is clear that liability, in the sense of an ultimate judicial determination of responsibility, plays a crucial role in the Safety Responsibility Act." 402 U.S., at 541, 91 S.Ct., at 1590 (emphasis supplied). 33 The dissenting opinion places almost exclusive reliance on broad language in Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228. As the dissent itself admits, however, see post, at 547, n. 4, Lambert does not control the disposition of these cases. The Court in Lambert considered the validity of an ordinance that made it a criminal offense for a convicted felon to remain in the city of Los Angeles for five days without registering with the Chief of Police. The Court held: "We believe that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand. As Holmes wrote in The Common Law, 'A law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear.' " 355 U.S., at 229, 78 S.Ct., at 243. Lambert concerns the mens rea that is necessary before the State may convict an individual of crime. See United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356; United States v. International Minerals & Chemical Corp., 402 U.S. 558, 91 S.Ct. 1697, 29 L.Ed.2d 178. Its application has been limited, lending some credence to Justice Frankfurter's colorful prediction in dissent that the case would stand as "an isolated deviation from the strong current of precedents—a derelict on the waters of the law." 355 U.S., at 232, 78 S.Ct., at 245. 34 The dissenting opinion suggests that as a practical matter notice must precede any attempt to develop a lapsed mineral estate, see post, at 553-554, and that there is thus no reason not to require notice in advance of the lapse itself. This suggestion ignores the fact that, independent of the interest in facilitating the development of mineral rights, the State has an interest in eliminating fractured mineral estates that were created long ago, have been unused for the statutory period, and create uncertainties in title records. As stated by the Indiana Supreme Court, "[t]he purposes of this Act . . . are to remedy uncertainties in titles and to facilitate the exploitation of energy sources and other valuable mineral resources." Ind., 406 N.E.2d, at 630. The State legitimately may treat a mineral interest that has been unused for the statutory period and for which the owner has not bothered to file a statement of claim as worthless and abandoned; the State has an interest in eliminating such encumbrances from title records. Moreover, if a mineral interest has been inactive for a sufficient period of time, a developer may well decide that notice is entirely unnecessary. Title opinions and title insurance, based normally on a thorough search of county records, may be sufficient to assure a potential developer that an ancient and dormant mineral estate, like other possible clouds on title, is without legal significance. In any event, the question in these cases is whether additional notice is constitutionally required, and not whether such notice might better serve the purposes of the statute. 35 See n. 8, supra. 36 "Minerals exist within the earth in strata and formations which do not necessarily coincide with the manner in which man has chosen to divide the surface area. Consequently it is commonly necessary to assemble several mineral interests in order to render the extraction of minerals safe and profitable. The Legislature could reasonably have concluded that those meeting the criteria set forth above include those most likely to assemble such interests and actually produce minerals. The separate classification of interests so held within these esential clusters is rationally related to the legitimate objectives of the enactment and is consequently not contrary to the requirements of state and federal equal protection." Ind., 406 N.E.2d, at 631-632. 1 Indiana Code § 32-5-11-1 (1976) provides that "Any interest in coal, oil, and gas, and other minerals, shall, if unused for a period of 20 years, be extinguished, unless a statement of claim is filed in accordance with section five [32-5-11-5] hereof, and the ownership shall revert to the then owner of the interest out of which it was carved." A mineral interest is deemed "used" for the purposes of the statute "when there are any minerals produced thereunder or when operations are being conducted thereon for injection, withdrawal, storage or disposal of water, gas or other fluid substances, or when rentals or royalties are being paid by the owner thereof for the purpose of delaying or enjoying the use or exercise of such rights or when any such use is being carried out on any tract with which such mineral interest may be unitized or pooled for production purposes, or when, in the case of coal or other solid minerals, there is production from a common vein or seam by the owners of such mineral interests, or when taxes are paid on such mineral interest by the owner thereof. Any use pursuant to or authorized by the instrument creating such mineral interest shall be effective to continue in force all rights granted by such instrument." Ind.Code § 32-5-11-3 (1976). With respect to the statement of claim, the statute specifies the relevant time limits: "The statement of claim provided in section one above [32-5-11-1] shall be filed by the owner of the mineral interest prior to the end of the twenty year period set forth in section two [one] [32-5-11-1] or within two years after the effective date [September 2, 1971] of this act, whichever is later, and shall contain the name and address of the owner of such interest, and description of the land, on or under which such mineral interest is located. Such statement of claim shall be filed in the office of the Recorder of Deeds in the county in which such land is located. Upon the filing of the statement of claim within the time provided, it shall be deemed that such mineral interest was being used on the date the statement of claim was filed." Ind.Code § 32-5-11-4 (1976). 2 In an attempt to support its refusal seriously to inquire into the adequacy of the protections afforded mineral interest owners by which they might preserve their property, the Court analogizes the Indiana statute to a Recording Act and draws on the pre-Fourteenth Amendment case of Jackson v. Lamphire, 3 Pet. 280, 7 L.Ed. 679 (1830). Ante, at 528-529, 532. The Court's reliance is misplaced. In Jackson v. Lamphire, supra, we recognized that the manner of implementing a Recording Act is to be left to the discretion of the legislature in the first instance. But we also recognized the natural limits of that legislative authority. "The time and manner of their operation, the exceptions to them, and the acts from which the time limited shall begin to run, will generally depend on the sound discretion of the legislature, according to the nature of the titles, the situation of the country, and the emergency which leads to their enactment. Cases may occur where the provisions of a law on those subjects may be so unreasonable as to amount to a denial of a right, and call for the interposition of the court; but the present is not one." Id., at 290 (emphasis added). It is not at all surprising that we did not find the exercise of legislative authority in Jackson v. Lamphire unreasonable. In 1797, the New York Legislature established a Commission to settle competing claims to land within a particular county. The New York Act provided a 2-year period, following the action of the Commission, in which any party adversely affected might dissent and preserve his right to recover his title. Id., at 282-283. In addition, before the Commission could act, the New York legislation required precisely those forms of notice that appellants in these cases complain are lacking in the Indiana statute. The Commission was expressly charged with the responsibility of notifying the populace that it was convening to resolve disputes concerning land within the county. Id., at 283. The New York Act further provided that "in all cases where there are filed or recorded . . . two or more deeds from one and the same person, or in the same right to different persons, if any person interested under either of them shall neglect to make his claim, and in all cases where several persons appear to have claims to one and the same piece of land, and any of them do not appear before the said commissioners, they shall cause a notice to be published in the newspapers aforesaid, and continued for six weeks, requiring all persons interested in such land to appear at a certain time and place therein mentioned, not less than six months from the date of such notice, and exhibit their claims to the same land." Id., at 284 (emphasis added). If the Indiana statute at issue in these cases provided a 2-year period in which mineral interest owners could assert their interests, following notice by publication, as provided in New York Act at issue in Jackson v. Lamphire, I would readily agree that the Indiana statute was reasonable even as applied to existing mineral interests. Absent such notice, the 2-year grace period provided by Indiana is constitutionally meaningless. 3 Despite suggestive references to cases involving abandonment of property, ante, at 526-528, the Court does not rest on the argument that failure to comply with the provisions of the Indiana statute implies abandonment. Nor could the Court so rest. The very cases cited by the Court demonstrate that the finding of abandonment with respect to rights in land has historically been associated with the property owner's failure to pursue legal remedies over the course of some legislatively established period of time. See Wilson v. Iseminger, 185 U.S. 55, 22 S.Ct. 573, 46 L.Ed.2d 804 (1902); Hawkins v. Barney's Lessee, 5 Pet. 457, 466-467, 8 L.Ed. 190 (1831). The mineral interest owners in these cases plainly have not been derelict in pressing their rights. Until their interests were extinguished "by operation of law" they simply had no occasion to pursue any legal action. Moreover, that mineral interest owners may have failed to exploit their interest for 20 years, during which period it may not have been economically feasible to extract minerals from the property, and during which period there was no statutory obligation to use the interest in any manner, does not suggest abandonment. Cf. Provident Savings Institution v. Malone, 221 U.S. 660, 664, 31 S.Ct. 661, 663, 55 L.Ed. 899 (1911). Nor can the intent to abandon, or any independent state interest supporting the Indiana statute, be found in appellants' failure to pay taxes. At no time have taxes been separately assessed with respect to the reserved mineral interest in No. 80-1018. App. in No. 80-1018, p. 7. While the record is slightly more ambiguous with respect to No. 80-965, appellees conceded at oral argument that the counties of Indiana generally do not assess taxes on mineral interests that are neither in use nor in the process of development. Tr. of Oral Arg. 25. 4 Because Lambert involved the imposition of criminal sanctions, giving rise to a rigor in the application of due process standards that would be inappropriate where only interests in property are at stake, it cannot control the disposition here. But the rigor with which the due process test was applied in Lambert is worth noting. The city's interest in that case lay in identifying felons within its boundaries. The ordinance failed for want of notice. But it is difficult to conceive how the city might have contrived an ordinance, effecting the same purpose, short of informing every person who entered the city that if he was a convicted felon he was obliged to register with the police. Because it was the singular purpose of the city to identify felons, individualized notice was simply incompatible with the legislative purpose. Nevertheless, we held the ordinance unenforceable. As will be noted below, the requirement of prior notice with respect to the registration scheme at issue in these cases, does not limit the ability of the State to further its asserted objectives. See infra, at 551-554. 5 It may be, as the Court holds, that the State may rationally prefer the holders of 10 interests to those who hold less, and that the holders of more numerous claims may thus be afforded special protections. The distinction drawn between the two classes of holders would thus survive the scrutiny of the Equal Protection Clause. The Court opinion fails, however, to identify any state interest in denying notice to a holder of less than 10 interests in the first instance.

34

70 L.Ed.2d 810 102 S.Ct. 835 455 U.S. 40 COMMUNITY COMMUNICATIONS COMPANY, INC., Petitioner,v.CITY OF BOULDER, COLORADO, et al. No. 80-1350. Argued Oct. 13, 1981. Decided Jan. 13, 1982. Syllabus Respondent city of Boulder is a "home rule" municipality, granted by the Colorado Constitution extensive powers of self-government in local and municipal matters. Petitioner is the assignee of a permit granted by a city ordinance to conduct a cable television business within the city limits. Originally, only limited service within a certain area of the city could be provided by petitioner, but improved technology offered petitioner an opportunity to expand its business into other areas, and also offered opportunities to potential competitors, one of whom expressed interest in obtaining a permit to provide competing service. The City Council then enacted an "emergency" ordinance prohibiting petitioner from expanding its business for three months, during which time the Council was to draft a model cable television ordinance and to invite new businesses to enter the market under the terms of that ordinance. Petitioner filed suit in Federal District Court, alleging that such a restriction would violate § 1 of the Sherman Act, and seeking a preliminary injunction to prevent the city from restricting petitioner's proposed expansion. The city responded that its moratorium ordinance could not be violative of the antitrust laws because, inter alia, the city enjoyed antitrust immunity under the "state action" doctrine of Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315. The District Court held that the Parker exemption was inapplicable and that the city was therefore subject to antitrust liability. Accordingly, the District Court issued a preliminary injunction. The Court of Appeals reversed, holding that the city's action satisfied the criteria for a Parker exemption. Held : Boulder's moratorium ordinance is not exempt from antitrust scrutiny under the Parker doctrine. Pp. 48-57. (a) The ordinance cannot be exempt from such scrutiny unless it constitutes either the action of the State itself in its sovereign capacity or municipal action in furtherance or implementation of clearly articulated and affirmatively expressed state policy. Pp.48-51. (b) The Parker "state action" exemption reflects Congress' intention to embody in the Sherman Act the federalism principle that the States possess a significant measure of sovereignty under the Federal Constitution. But this principle is inherently limited: Ours is a "dual system of government," Parker, supra, at 351, 63 S.Ct., at 313, which has no place for sovereign cities. Here, the direct delegation of powers to the city through the Home Rule Amendment to the Colorado Constitution does not render the cable television moratorium ordinance an "act of government" performed by the city acting as the State in local matters so as to meet Parker § "state action" criterion. Pp. 52-54. (c) Nor is the requirement of "clear articulation and affirmative expression" of a state policy fulfilled here by the Home Rule Amendment's "guarantee of local autonomy," since the State's position is one of mere neutrality respecting the challenged moratorium ordinance. This case involves city action in the absence of any regulation by the State, and such action cannot be said to further or implement any clearly articulated or affirmatively expressed state policy. Pp. 54-56. (d) Respondents' argument that denial of the Parker exemption in this case will have serious adverse consequences for cities and will unduly burden the federal courts is simply an attack upon the wisdom of the longstanding congressional commitment to the policy of free markets and open competition embodied in the antitrust laws, which laws apply to municipalities not acting in furtherance of clearly articulated and affirmatively expressed state policy. Pp. 56-57. 630 F.2d 704 (10th Cir.), reversed and remanded. Harold R. Farrow, Oakland, Cal., for petitioner. Thomas P. McMahon, Asst. Atty. Gen. of Colorado, for the State of Colorado, et al., amici curiae, by special leave of Court. Jeffrey H. Howard, Washington, D. C., for respondents. [Argument of Counsel from pages 42-43 intentionally omitted] Justice BRENNAN delivered the opinion of the Court. 1 The question presented in this case, in which the District Court for the District of Colorado granted preliminary injunctive relief, is whether a "home rule" municipality, granted by the state constitution extensive powers of self-government in local and municipal matters, enjoys the "state action" exemption from Sherman Act liability announced in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed.2d 315 (1943). 2 * Respondent city of Boulder is organized as a "home rule" municipality under the Constitution of the State of Colorado.1 The city is thus entitled to exercise "the full right of self-government in both local and municipal matters," and with respect to such matters the City Charter and ordinances supersede the laws of the State. Under that Charter, all municipal legislative powers are exercised by an elected City Council.2 In 1964 the City Council enacted an ordinance granting to Colorado Televents, Inc., a 20-year, revocable, nonexclusive permit to conduct a cable television business within the city limits. This permit was assigned to petitioner in 1966, and since that time petitioner has provided cable television service to the University Hill area of Boulder, an area where some 20% of the city's population lives, and where, for geographical reasons, broadcast television signals cannot be received. 3 From 1966 until February 1980, due to the limited service that could be provided with the technology then available, petitioner's service consisted essentially of retransmissions of programming broadcast from Denver and Cheyenne, Wyo. Petitioner's market was therefore confined to the University Hill area. However, markedly improved technology became available in the late 1970's, enabling petitioner to offer many more channels of entertainment than could be provided by local broadcast television.3 Thus presented with an opportunity to expand its business into other areas of the city, petitioner in May 1979 informed the City Council that it planned such an expansion. But the new technology offered opportunities to potential competitors, as well, and in July 1979 one of them, the newly formed Boulder Communications Co. (BCC),4 also wrote to the City Council, expressing its interest in obtaining a permit to provide competing cable television service throughout the city.5 4 The City Council's response, after reviewing its cable television policy,6 was the enactment of an "emergency" ordinance prohibiting petitioner from expanding its business into other areas of the city for a period of three months.7 The City Council announced that during this moratorium it planned to draft a model cable television ordinance and to invite new businesses to enter the Boulder market under its terms, but that the moratorium was necessary because petitioner's continued expansion during the drafting of the model ordinance would discourage potential competitors from entering the market.8 5 Petitioner filed this suit in the United States District Court for the District of Colorado, and sought, inter alia, a preliminary injunction to prevent the city from restricting petitioner's proposed business expansion, alleging that such a restriction would violate § 1 of the Sherman Act.9 The city responded that its moratorium ordinance could not be violative of the antitrust laws, either because that ordinance constituted an exercise of the city's police powers, or because Boulder enjoyed antitrust immunity under the Parker doctrine. The District Court considered the city's status as a home rule municipality, but determined that that status gave autonomy to the city only in matters of local concern, and that the operations of cable television embrace "wider concerns, including interstate commerce . . . [and] the First Amendment rights of communicators." 485 F.Supp. 1035, 1038-1039 (1980). Then, assuming, arguendo, that the ordinance was within the city's authority as a home rule municipality, the District Court considered City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978), and concluded that the Parker exemption was "wholly inapplicable," and that the city was therefore subject to antitrust liability. 485 F.Supp., at 1039.10 Petitioner's motion for a preliminary injunction was accordingly granted. 6 On appeal, a divided panel of the United States Court of Appeals for the Tenth Circuit reversed. 630 F.2d 704 (1980). The majority, after examining Colorado law, rejected the District Court's conclusion that regulation of the cable television business was beyond the home rule authority of the city. Id., at 707. The majority then addressed the question of the city's claimed Parker exemption. It distinguished the present case from City of Lafayette on the ground that, in contrast to the municipally operated revenue-producing utility companies at issue there, "no proprietary interest of the City is here involved." 630 F.2d, at 708. After noting that the city's regulation "was the only control or active supervision exercised by state or local government, and . . . represented the only expression of policy as to the subject matter," id., at 707, the majority held that the city's actions therefore satisfied the criteria for a Parker exemption, 630 F.2d, at 708.11 We granted certiorari, 450 U.S. 1039, 101 S.Ct. 1756, 68 L.Ed.2d 236 (1981). We reverse. II A. 7 Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), addressed the question whether the federal antitrust laws prohibited a State, in the exercise of its sovereign powers, from imposing certain anticompetitive restraints. These took the form of a "marketing program" adopted by the State of California for the 1940 raisin crop; that program prevented appellee from freely marketing his crop in interstate commerce. Parker noted that California's program "derived its authority . . . 8 from the legislative command of the state," id., at 350, 63 S.Ct., at 313, and went on to hold that the program was therefore exempt, by virtue of the Sherman Act's own limitations, from antitrust attack: 9 "We find nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature. In a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state's control over its officers and agents is not lightly to be attributed to Congress." Id., at 350-351, 63 S.Ct., at 313-314. 10 The availability of this exemption to a State's municipalities was the question presented in City of Lafayette, supra. In that case, petitioners were Louisiana cities empowered to own and operate electric utility systems both within and beyond their municipal limits. Respondent brought suit against petitioners under the Sherman Act, alleging that they had committed various antitrust offenses in the conduct of their utility systems, to the injury of respondent. Petitioners invoked the Parker doctrine as entitling them to dismissal of the suit. The District Court accepted this argument and dismissed. But the Court of Appeals for the Fifth Circuit reversed, holding that a "subordinate state governmental body is not ipso facto exempt from the operation of the antitrust laws," City of Lafayette v. Louisiana Power & Light Co., 532 F.2d 431, 434 (1976) (footnote omitted), and directing the District Court on remand to examine "whether the state legislature contemplated a certain type of anticompetitive restraint," ibid.12 11 This Court affirmed. In doing so, a majority rejected at the outset petitioners' claim that, quite apart from Parker, "Congress never intended to subject local governments to the antitrust laws." 435 U.S., at 394, 98 S.Ct., at 1127. A plurality opinion for four Justices then addressed petitioners' argument that Parker, properly construed, extended to "all governmental entities, whether state agencies or subdivisions of a State, . . . simply by reason of their status as such." 435 U.S., at 408, 98 S.Ct., at 1134. The plurality opinion rejected this argument, after a discussion of Parker, Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), and Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2697, 53 L.Ed.2d 810 (1977).13 These precedents were construed as holding that the Parker exemption reflects the federalism principle that we are a Nation of States, a principle that makes no accommodation for sovereign subdivisions of States. The plurality opinion said: 12 "Cities are not themselves sovereign; they do not receive all the federal deference of the States that create them. Parker § limitation of the exemption to 'official action directed by a state,' is consistent with the fact that the States' subdivisions generally have not been treated as equivalents of the States themselves. In light of the serious economic dislocation which could result if cities were free to place their own parochial interests above the Nation's economic goals reflected in the antitrust laws, we are especially unwilling to presume that Congress intended to exclude anticompetitive municipal action from their reach." 435 U.S., at 412-413, 98 S.Ct., at 1136-1137 (footnote and citations omitted). 13 The opinion emphasized, however, that the State as sovereign might sanction anticompetitive municipal activities and thereby immunize municipalities from antitrust liability. Under the plurality's standard, the Parker doctrine would shield from antitrust liability municipal conduct engaged in "pursuant to state policy to displace competition with regulation or monopoly public service." 435 U.S., at 413, 98 S.Ct., at 1137. This was simply a recognition that a State may frequently choose to effect its policies through the instrumentality of its cities and towns. It was stressed, however, that the "state policy" relied upon would have to be "clearly articulated and affirmatively expressed." Id., at 410, 98 S.Ct., at 1135. This standard has since been adopted by a majority of the Court. New Motor Vehicle Board of California v. Orrin W. Fox Co., 439 U.S. 96, 109, 99 S.Ct. 403, 411-12, 58 L.Ed.2d 361 (1978); California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 105, 100 S.Ct. 937, 943, 63 L.Ed.2d 233 (1980).14 B 14 Our precedents thus reveal that Boulder's moratorium ordinance cannot be exempt from antitrust scrutiny unless it constitutes the action of the State of Colorado itself in its sovereign capacity, see Parker, or unless it constitutes municipal action in furtherance or implementation of clearly articulated and affirmatively expressed state policy, see City of Lafayette, Orrin W. Fox Co., and Midcal. Boulder argues that these criteria are met by the direct delegation of powers to municipalities through the Home Rule Amendment to the Colorado Constitution. It contends that this delegation satisfies both the Parker and the City of Lafayette standards. We take up these arguments in turn. 15 (1) 16 Respondent city's Parker argument emphasizes that through the Home Rule Amendment the people of the State of Colorado have vested in the city of Boulder " 'every power theretofore possessed by the legislature . . . in local and municipal affairs.' "15 The power thus possessed by Boulder's City Council assertedly embraces the regulation of cable television, which is claimed to pose essentially local problems.16 Thus, it is suggested, the city's cable television moratorium ordinance is an "act of government" performed by the city acting as the State in local matters, which meets the "state action" criterion of Parker.17 17 We reject this argument: it both misstates the letter of the law and misunderstands its spirit. The Parker state-action exemption reflects Congress' intention to embody in the Sherman Act the federalism principle that the States possess a significant measure of sovereignty under our Constitution. But this principle contains its own limitation: Ours is a "dual system of government," Parker, 317 U.S., at 351, 63 S.Ct., at 313 (emphasis added), which has no place for sovereign cities. As this Court stated long ago, all sovereign authority "within the geographical limits of the United States" resides either with 18 "the Government of the United States, or [with] the States of the Union. There exist within the broad domain of sovereignty but these two. There may be cities, counties, and other organized bodies with limited legislative functions, but they are all derived from, or exist in, subordination to one or the other of these." United States v. Kagama, 118 U.S. 375, 379, 6 S.Ct. 1109, 1111, 30 L.Ed. 228 (1886) (emphasis added). 19 The dissent in the Court of Appeals correctly discerned this limitation upon the federalism principle: "We are a nation not of 'city-states' but of States." 630 F.2d, at 717. Parker itself took this view. When Parker examined Congress' intentions in enacting the antitrust laws, the opinion, as previously indicated, noted that: "[N]othing in the language of the Sherman Act or in its history . . . suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature. . . . [And] an unexpressed purpose to nullify a state's control over its officers and agents is not lightly to be attributed to Congress." 317 U.S., at 350-351, 63 S.Ct., at 313-314 (emphasis added). Thus Parker recognized Congress' intention to limit the state-action exemption based upon the federalism principle of limited state sovereignty. City of Lafayette, Orrin W. Fox Co., and Midcal reaffirmed both the vitality and the intrinsic limits of the Parker state-action doctrine. It was expressly recognized by the plurality opinion in City of Lafayette that municipalities "are not themselves sovereign," 435 U.S., at 412, 98 S.Ct., at 1136, and that accordingly they could partake of the Parker exemption only to the extent that they acted pursuant to a clearly articulated and affirmatively expressed state policy, 435 U.S., at 413, 98 S.Ct., at 1137. The Court adopted this view in Orrin W. Fox Co., 439 U.S., at 109, 99 S.Ct., at 411-412, and Midcal, 445 U.S., at 105, 100 S.Ct., at 943. We turn then to Boulder's contention that its actions were undertaken pursuant to a clearly articulated and affirmatively expressed state policy. 20 (2) 21 Boulder first argues that the requirement of "clear articulation and affirmative expression" is fulfilled by the Colorado Home Rule Amendment's "guarantee of local autonomy." It contends, quoting from City of Lafayette, 435 U.S., at 394, 415, 98 S.Ct., at 1127, 1138, that by this means Colorado has "comprehended within the powers granted" to Boulder the power to enact the challenged ordinance, and that Colorado has thereby "contemplated" Boulder's enactment of an anticompetitive regulatory program. Further, Boulder contends that it may be inferred, "from the authority given" to Boulder "to operate in a particular area"—here, the asserted home rule authority to regulate cable television—"that the legislature contemplated the kind of action complained of." (Emphasis supplied.) Boulder therefore concludes that the "adequate state mandate" required by City of Lafayette, supra, at 415, 98 S.Ct., at 1138, is present here.18 22 But plainly the requirement of "clear articulation and affirmative expression" is not satisfied when the State's position is one of mere neutrality respecting the municipal actions challenged as anticompetitive. A State that allows its municipalities to do as they please can hardly be said to have "contemplated" the specific anticompetitive actions for which municipal liability is sought. Nor can those actions be truly described as "comprehended within the powers granted," since the term, "granted," necessarily implies an affirmative addressing of the subject by the State. The State did not do so here: The relationship of the State of Colorado to Boulder's moratorium ordinance is one of precise neutrality. As the majority in the Court of Appeals below acknowledged: "[W]e are here concerned with City action in the absence of any regulation whatever by the State of Colorado. Under these circumstances there is no interaction of state and local regulation. We have only the action or exercise of authority by the City." 630 F.2d, at 707. Indeed, Boulder argues that as to local matters regulated by a home rule city, the Colorado General Assembly is without power to act. Cf. City of Lafayette, supra, at 414 and n. 44, 98 S.Ct., at 1137 and n. 44. Thus, in Boulder's view, it can pursue its course of regulating cable television competition, while another home rule city can choose to prescribe monopoly service, while still another can elect free-market competition: and all of these policies are equally "contemplated," and "comprehended within the powers granted." Acceptance of such a proposition—that the general grant of power to enact ordinances necessarily implies state authorization to enact specific anticompetitive ordinances—would wholly eviscerate the concepts of "clear articulation and affirmative expression" that our precedents require. III 23 Respondents argue that denial of the Parker exemption in the present case will have serious adverse consequences for cities, and will unduly burden the federal courts. But this argument is simply an attack upon the wisdom of the longstanding congressional commitment to the policy of free markets and open competition embodied in the antitrust laws.19 Those laws, like other federal laws imposing civil or criminal sanctions upon "persons," of course apply to municipalities as well as to other corporate entities.20 Moreover, judicial enforcement of Congress' will regarding the state-action exemption renders a State "no less able to allocate governmental power between itself and its political subdivisions. It means only that when the State itself has not directed or authorized an anticompetitive practice, the State's subdivisions in exercising their delegated power must obey the antitrust laws." City of Lafayette, 435 U.S., at 416, 98 S.Ct., at 1138. As was observed in that case: 24 "Today's decision does not threaten the legitimate exercise of governmental power, nor does it preclude municipal government from providing services on a monopoly basis. Parker and its progeny make clear that a State properly may . . . direct or authorize its instrumentalities to act in a way which, if it did not reflect state policy, would be inconsistent with the antitrust laws. . . . [A]ssuming that the municipality is authorized to provide a service on a monopoly basis, these limitations on municipal action will not hobble the execution of legitimate governmental programs." Id., at 416-417, 98 S.Ct., at 1138-1139 (footnote omitted). 25 The judgment of the Court of Appeals is reversed, and the action is remanded for further proceedings consistent with this opinion. 26 It is so ordered. 27 JUSTICE WHITE took no part in the consideration or decision of this case. 28 Justice STEVENS, concurring. 29 The Court's opinion, which I have joined, explains why the city of Boulder is not entitled to an exemption from the antitrust laws. The dissenting opinion seems to assume that the Court's analysis of the exemption issue is tantamount to a holding that the antitrust laws have been violated. The assumption is not valid. The dissent's dire predictions about the consequences of the Court's holding should therefore be viewed with skepticism.1 30 In City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364, we held that municipalities' activities as providers of services are not exempt from the Sherman Act. The reasons for denying an exemption to the city of Lafayette are equally applicable to the city of Boulder, even though Colorado is a home-rule State. We did not hold in City of Lafayette that the City had violated the antitrust laws. Moreover, that question is quite different from the question whether the city of Boulder violated the Sherman Act because the character of their respective activities differs. In both cases, the violation issue is separate and distinct from the exemption issue. 31 A brief reference to our decision in Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141, will identify the invalidity of the dissent's assumption. In that case, the Michigan Public Utility Commission had approved a tariff that required the Detroit Edison Co. to provide its customers free light bulbs. The company contended that its light bulb distribution program was therefore exempt from the antitrust laws on the authority of Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315. See 428 U.S., at 592, 96 S.Ct., at 3118. The Court rejected the company's interpretation of Parker and held that the plaintiff could proceed with his antitrust attack against the company's program. We surely did not suggest that the members of the Michigan Public Utility Commission who had authorized the program under attack had thereby become parties to a violation of the Sherman Act. On the contrary, the plurality opinion reviewed the Parker case in great detail to emphasize the obvious difference between a charge that public officials have violated the Sherman Act and a charge that private parties have done so.2 32 It would be premature at this stage of the litigation to comment on the question whether petitioner will be able to establish that respondents have violated the antitrust laws. The answer to that question may depend on factual and legal issues that must and should be resolved in the first instance by the District Court. In accordance with my belief that "the Court should adhere to its settled policy of giving concrete meaning to the general language of the Sherman Act by a process of case-by-case adjudication of specific controversies," 428 U.S., at 603, 96 S.Ct., at 3124 (opinion of STEVENS, J.), I offer no gratuitous advice about the questions I think might be relevant. My only observation is that the violation issue is not nearly as simple as the dissenting opinion implies. 33 Justice REHNQUIST, with whom THE CHIEF JUSTICE and Justice O'CONNOR join, dissenting. 34 The Court's decision in this case is flawed in two serious respects, and will thereby impede, if not paralyze, local governments' efforts to enact ordinances and regulations aimed at protecting public health, safety, and welfare, for fear of subjecting the local government to liability under the Sherman Act, 15 U.S.C. § 1 et seq. First, the Court treats the issue in this case as whether a municipality is "exempt" from the Sherman Act under our decision in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). The question addressed in Parker and in this case is not whether state and local governments are exempt from the Sherman Act, but whether statutes, ordinances, and regulations enacted as an act of government are pre-empted by the Sherman Act under the operation of the Supremacy Clause. Second, in holding that a municipality's ordinances can be "exempt" from antitrust scrutiny only if the enactment furthers or implements a "clearly articulated and affirmatively expressed state policy," ante, at 52, the Court treats a political subdivision of a State as an entity indistinguishable from any privately owned business. As I read the Court's opinion, a municipality may be said to violate the antitrust laws by enacting legislation in conflict with the Sherman Act, unless the legislation is enacted pursuant to an affirmative state policy to supplant competitive market forces in the area of the economy to be regulated. 35 * Pre-emption and exemption are fundamentally distinct concepts. Pre-emption, because it involves the Supremacy Clause, implicates our basic notions of federalism. Pre-emption analysis is invoked whenever the Court is called upon to examine "the interplay between the enactments of two different sovereigns—one federal and the other state." Handler, Antitrust—1978, 78 Colum.L.Rev. 1363, 1379 (1978). We are confronted with questions under the Supremacy Clause when we are called upon to resolve a purported conflict between the enactments of the Federal Government and those of a state or local government, or where it is claimed that the Federal Government has occupied a particular field exclusively, so as to foreclose any state regulation. Where pre-emption is found, the state enactment must fall without any effort to accommodate the State's purposes or interests. Because pre-emption treads on the very sensitive area of federal-state relations, this Court is "reluctant to infer pre-emption," Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 132, 98 S.Ct. 2207, 2217, 57 L.Ed.2d 91 (1978), and the presumption is that pre-emption is not to be found absent the clear and manifest intention of Congress that the federal Act should supersede the police powers of the States. Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978). 36 In contrast, exemption involves the interplay between the enactments of a single sovereign—whether one enactment was intended by Congress to relieve a party from the necessity of complying with a prior enactment. See, e.g., National Broiler Marketing Assn. v. United States, 436 U.S. 816, 98 S.Ct. 2122, 56 L.Ed.2d 728 (1978) (Sherman Act and Capper-Volstead Act); United States v. Philadelphia National Bank, 374 U.S. 321, 350-355, 83 S.Ct. 1715, 1734-37, 10 L.Ed.2d 915 (1963) (Clayton Act and Bank Merger Act of 1960); Silver v. New York Stock Exchange, 373 U.S. 341, 357-361, 83 S.Ct. 1246, 1257-59, 10 L.Ed.2d 389 (1963) (Sherman Act and Securities Exchange Act). Since the enactments of only one sovereign are involved, no problems of federalism are present. The court interpreting the statute must simply attempt to ascertain congressional intent, whether the exemption is claimed to be express or implied. The presumptions utilized in exemption analysis are quite distinct from those applied in the pre-emption context. In examining exemption questions, "the proper approach . . . is an analysis which reconciles the operation of both statutory schemes with one another rather than holding one completely ousted." Silver v. New York Stock Exchange, supra, at 357, 83 S.Ct. at 1257. 37 With this distinction in mind, I think it quite clear that questions involving the so-called "state action" doctrine are more properly framed as being ones of pre-emption rather than exemption. Issues under the doctrine inevitably involve state and local regulation which, it is contended, are in conflict with the Sherman Act. 38 Our decision in Parker v. Brown, supra, was the genesis of the "state action" doctrine. That case involved a challenge to a program established pursuant to the California Agricultural Prorate Act, which sought to restrict competition in the State's raisin industry by limiting the producer's ability to distribute raisins through private channels. The program thus sought to maintain prices at a level higher than those maintained in an unregulated market. This Court assumed that the program would violate the Sherman Act were it "organized and made effective solely by virtue of a contract, combination or conspiracy of private persons, individual or corporate," and that "Congress could, in the exercise of its commerce power, prohibit a state from maintaining a stabilization program like the present because of its effect on interstate commerce." 317 U.S., at 350, 63 S.Ct., at 313. In this regard, we noted that "[o]ccupation of a legislative field by Congress in the exercise of a granted power is a familiar example of its constitutional power to suspend state laws." Ibid. We then held, however, that "[w]e find nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature. In a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state's control over its officers and agents is not lightly to be attributed to Congress." Id., at 350-351, 63 S.Ct., at 313-14. 39 This is clearly the language of federal pre-emption under the Supremacy Clause. This Court decided in Parker that Congress did not intend the Sherman Act to override state legislation designed to regulate the economy. There was no language of "exemption," either express or implied, nor the usual incantation that "repeals by implication are disfavored." Instead, the Court held that state regulation of the economy is not necessarily pre-empted by the antitrust laws even if the same acts by purely private parties would constitute a violation of the Sherman Act. The Court recognized, however, that some state regulation is pre-empted by the Sherman Act, explaining that "a state does not give immunity to those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful . . . ." Id., at 351, 63 S.Ct., at 314. 40 Our two most recent Parker doctrine cases reveal most clearly that the "state action" doctrine is not an exemption at all, but instead a matter of federal pre-emption. 41 In New Motor Vehicle Bd. of California v. Orrin W. Fox Co., 439 U.S. 96, 99 S.Ct. 403, 58 L.Ed.2d 361 (1978), we examined the contention that the California Automobile Franchise Act conflicted with the Sherman Act. That Act required a motor vehicle manufacturer to secure the approval of the California New Motor Vehicle Board before it could open a dealership within an existing franchisee's market area, if the competing franchisee objected. By so delaying the opening of a new dealership whenever a competing dealership protested, the Act arguably gave effect to privately initiated restraints of trade, and thus was invalid under Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035 (1951). We held that the Act was outside the purview of the Sherman Act because it contemplated "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." 439 U.S., at 109, 99 S.Ct., at 411-412. We also held that a state statute is not invalid under the Sherman Act merely because the statute will have an anticompetitive effect. Otherwise, if an adverse effect upon competition were enough to render a statute invalid under the Sherman Act, " 'the States' power to engage in economic regulation would be effectively destroyed.' " Id., at 111, 99 S.Ct., at 412 (quoting Exxon Corp. v. Governor of Maryland, 437 U.S., at 133, 98 S.Ct., at 2218). In New Motor Vehicle Bd., we held that a state statute could stand in the face of a purported conflict with the Sherman Act. 42 In California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980), we invalidated California's wine-pricing system in the face of a challenge under the Sherman Act. We first held that the price-setting program constituted resale price maintenance, which this Court has consistently held to be a "per se" violation of the Sherman Act. Id., at 102-103, 100 S.Ct., 941-42. We then concluded that the program could not fit within the Parker doctrine. Although the restraint was imposed pursuant to a clearly articulated and affirmatively expressed state policy, the program was not actively supervised by the State itself. The State merely authorized and enforced price fixing established by private parties, instead of establishing the prices itself or reviewing their reasonableness. In the absence of sufficient state supervision, we held that the pricing system was invalid under the Sherman Act. 455 U.S., at 105-106, 100 S.Ct., at 943-944. 43 Unlike the instant case, Parker, Midcal, and New Motor Vehicle Bd. involved challenges to a state statute. There was no suggestion that a State violates the Sherman Act when it enacts legislation not saved by the Parker doctrine from invalidation under the Sherman Act. Instead, the statute is simply unenforceable because it has been pre-empted by the Sherman Act. By contrast, the gist of the Court's opinion is that a municipality may actually violate the antitrust laws when it merely enacts an ordinance invalid under the Sherman Act, unless the ordinance implements an affirmatively expressed state policy.1 According to the majority, a municipality may be liable under the Sherman Act for enacting anticompetitive legislation, unless it can show that it is acting simply as the "instrumentality" of the State. 44 Viewing the Parker doctrine in this manner will have troubling consequences for this Court and the lower courts who must now adapt antitrust principles to adjudicate Sherman Act challenges to local regulation of the economy. The majority suggests as much in footnote 20. Among the many problems to be encountered will be whether the "per se" rules of illegality apply to municipal defendants in the same manner as they are applied to private defendants. Another is the question of remedies. The Court understandably leaves open the question whether municipalities may be liable for treble damages for enacting anticompetitive ordinances which are not protected by the Parker doctrine.2 45 Most troubling, however, will be questions regarding the factors which may be examined by the Court pursuant to the Rule of Reason. In National Society of Professional Engi- neers v. United States, 435 U.S. 679, 695, 98 S.Ct. 1355, 1367, 55 L.Ed.2d 637 (1978), we held that an anticompetitive restraint could not be defended on the basis of a private party's conclusion that competition posed a potential threat to public safety and the ethics of a particular profession. "[T]he Rule of Reason does not support a defense based on the assumption that competition itself is unreasonable." Id., at 696, 98 S.Ct., at 1368. Professional Engineers holds that the decision to replace competition with regulation is not within the competence of private entities. Instead, private entities may defend restraints only on the basis that the restraint is not unreasonable in its effect on competition or because its procompetitive effects outweigh its anticompetitive effects. See Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). 46 Applying Professional Engineers to municipalities would mean that an ordinance could not be defended on the basis that its benefits to the community, in terms of traditional health, safety, and public welfare concerns, outweigh its anticompetitive effects. A local government would be disabled from displacing competition with regulation. Thus, a municipality would violate the Sherman Act by enacting restrictive zoning ordinances, by requiring business and occupational licenses, and by granting exclusive franchises to utility services, even if the city determined that it would be in the best interests of its inhabitants to displace competition with regulation. Competition simply does not and cannot further the interests that lie behind most social welfare legislation. Although state or local enactments are not invalidated by the Sherman Act merely because they may have anticompetitive effects, Exxon Corp. v. Governor of Maryland, supra, at 133, 98 S.Ct., at 2217-2218, this Court has not hesitated to invalidate such statutes on the basis that such a program would violate the antitrust laws if engaged in by private parties. See California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., supra, at 102-103, 100 S.Ct., at 941-942 (resale price maintenance); Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035 (1951) (same). Cf. Parker v. Brown, 317 U.S., at 350, 63 S.Ct., at 313 (Court assumed the stabilization program would violate the Sherman Act if organized and effected by private persons). Unless the municipality could point to an affirmatively expressed state policy to displace competition in the given area sought to be regulated, the municipality would be held to violate the Sherman Act and the regulatory scheme would be rendered invalid. Surely, the Court does not seek to require a municipality to justify every ordinance it enacts in terms of its procompetitive effects. If municipalities are permitted only to enact ordinances that are consistent with the procompetitive policies of the Sherman Act, a municipality's power to regulate the economy would be all but destroyed. See Exxon Corp. v. Governor of Maryland, 437 U.S., at 133, 98 S.Ct., at 2217-2218. This country's municipalities will be unable to experiment with innovative social programs. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386-387, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting). 47 On the other hand, rejecting the rationale of Professional Engineers to accommodate the municipal defendant opens up a different sort of Pandora's Box. If the Rule of Reason were "modified" to permit a municipality to defend its regulation on the basis that its benefits to the community outweigh its anticompetitive effects, the courts will be called upon to review social legislation in a manner reminiscent of the Lochner (Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905)) era. Once again, the federal courts will be called upon to engage in the same wide-ranging, essentially standardless inquiry into the reasonableness of local regulation that this Court has properly rejected. Instead of "liberty of contract" and "substantive due process," the procompetitive principles of the Sherman Act will be the governing standard by which the reasonableness of all local regulation will be determined.3 Neither the Due Process Clause nor the Sherman Act authorizes federal courts to invalidate local regulation of the economy simply upon opining that the municipality has acted unwisely. The Sherman Act should not be deemed to authorize federal courts to "substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws." Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93 (1963). The federal courts have not been appointed by the Sherman Act to sit as a "superlegislature to weigh the wisdom of legislation." Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 535, 69 S.Ct. 251, 256, 93 L.Ed. 212 (1949). 48 Before this Court leaps into the abyss and holds that municipalities may violate the Sherman Act by enacting economic and social legislation, it ought to think about the consequences of such a decision in terms of its effect both upon the very antitrust principles the Court desires to apply to local governments and upon the role of the federal courts in examining the validity of local regulation of the economy. 49 Analyzing this problem as one of federal pre-emption rather than exemption will avoid these problems. We will not be confronted with the anomaly of holding a municipality liable for enacting anticompetitive ordinances.4 The federal courts will not be required to engage in a standardless review of the reasonableness of local legislation. Rather, the question simply will be whether the ordinance enacted is pre-empted by the Sherman Act. I see no reason why a different rule of pre-emption should be applied to testing the validity of municipal ordinances than the standard we presently apply in assessing state statutes. I see no reason why a municipal ordinance should not be upheld if it satisfies the Midcal criteria: the ordinance survives if it is enacted pursuant to an affirmative policy on the part of the city to restrain competition and if the city actively supervises and implements this policy.5 As with the case of the State, I agree that a city may not simply authorize private parties to engage in activity that would violate the Sherman Act. See Parker v. Brown, 317 U.S., at 351, 63 S.Ct., at 313. As in the case of a State, a municipality may not become "a participant in a private agreement or combination by others for restraint of trade." Id., at 351-352, 63 S.Ct., at 313-14. 50 Apart from misconstruing the Parker doctrine as a matter of "exemption" rather than pre-emption, the majority comes to the startling conclusion that our federalism is in no way implicated when a municipal ordinance is invalidated by the Sherman Act. I see no principled basis to conclude, as does the Court, that municipal ordinances are more susceptible to invalidation under the Sherman Act than are state statutes. The majority concludes that since municipalities are not States, and hence are not "sovereigns," our notions of federalism are not implicated when federal law is applied to invalidate otherwise constitutionally valid municipal legislation. I find this reasoning remarkable indeed. Our notions of federalism are implicated when it is contended that a municipal ordinance is preempted by a federal statute. This Court has made no such distinction between States and their subdivisions with regard to the pre-emptive effects of federal law. The standards applied by this Court are the same regardless of whether the challenged enactment is that of a State or one of its political subdivisions. See, e.g., City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973); Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960). I suspect that the Court has not intended to so dramatically alter established principles of Supremacy Clause analysis. Yet, this is precisely what it appears to have done by holding that a municipality may invoke the Parker doctrine only to the same extent as can a private litigant. Since the Parker doctrine is a matter of federal pre-emption under the Supremacy Clause, it should apply in challenges to municipal regulation in similar fashion as it applies in a challenge to a state regulatory enactment. The distinction between cities and States created by the majority has no principled basis to support it if the issue is properly framed in terms of pre-emption rather than exemption. 51 As with the States, the Parker doctrine should be employed to determine whether local legislation has been pre-empted by the Sherman Act. Like the State, a municipality should not be haled into federal court in order to justify its decision that competition should be replaced with regulation. TheParker doctrine correctly holds that the federal interest in protecting and fostering competition is not infringed so long as the state or local regulation is so structured to ensure that it is truly the government, and not the regulated private entities, which is replacing competition with regulation. II 52 By treating the municipal defendant as no different from the private litigant attempting to invoke the Parker doctrine, the Court's decision today will radically alter the relationship between the States and their political subdivisions. Municipalities will no longer be able to regulate the local economy without the imprimatur of a clearly expressed state policy to displace competition.6 The decision today effectively destroys the "home rule" movement in this country, through which local governments have obtained, not without persistent state opposition, a limited autonomy over matters of local concern.7 The municipalities that stand most to lose by the decision today are those with the most autonomy. Where the State is totally disabled from enacting legislation dealing with matters of local concern, the municipality will be defenseless from challenges to its regulation of the local economy. In such a case, the State is disabled from articulating a policy to displace competition with regulation. Nothing short of altering the relationship between the municipality and the State will enable the local government to legislate on matters important to its inhabitants. In order to defend itself from Sherman Act attacks, the home rule municipality will have to cede its authority back to the State. It is unfortunate enough that the Court today holds that our federalism is not implicated when municipal legislation is invalidated by a federal statute. It is nothing less than a novel and egregious error when this Court uses the Sherman Act to regulate the relationship between the States and their political subdivisions. 1 The Colorado Home Rule Amendment, Colo.Const., Art. XX, § 6, provides in pertinent part: "The people of each city or town of this state, having a population of two thousand inhabitants . . ., are hereby vested with, and they shall always have, power to make, amend, add to or replace the charter of said city or town, which shall be its organic law and extend to all its local and municipal matters. "Such charter and the ordinances made pursuant thereto in such matters shall supersede within the territorial limits and other jurisdiction of said city or town any law of the state in conflict therewith. * * * * * "It is the intention of this article to grant and confirm to the people of all municipalities coming within its provisions the full right of self-government in both local and municipal matters. . . . "The statutes of the state of Colorado, so far as applicable, shall continue to apply to such cities and towns, except insofar as superseded by the charters of such cities and towns or by ordinance passed pursuant to such charters." 2 Boulder, Colo., Charter § 11 (1965 rev. ed.). 3 The District Court below noted: "Up to late 1975, cable television throughout the country was concerned primarily with retransmission of television signals to areas which did not have normal reception, with some special local weather and news services originated by the cable operators. During the late 1970's however, satellite technology impacted the industry and prompted a rapid, almost geometric rise in its growth. As earth stations became less expensive, and 'Home Box Office' companies developed, the public response to cable television greatly increased the market demand for such expanded services. "The 'state of the art' presently allows for more than 35 channels, including movies, sports, FM radio, and educational, children's, and religious programming. The institutional uses for cable television are fast increasing, with technology for two-way service capability. Future potential for cable television is referred to as 'blue sky', indicating that virtually unlimited technological improvements are still expected." 485 F.Supp. 1035, 1036-1037 (1980). 4 BCC was a defendant below, and is a respondent here. 5 Regarding this letter, the District Court noted that "BCC outlined a proposal for a new system, acknowledging the presence of [petitioner] in Boulder but stating that '(w)hatever action the City takes in regard to [petitioner], it is the plan of BCC to begin building its system as soon as feasible after the City grants BCC its permit.' " Id., at 1037. 6 "The . . . City Council . . . initiat[ed] a review and reconsideration of cable television in view of the many changes in the industry since . . . 1964. . . . Accordingly, they hired a consultant, . . . and held a number of study meetings to develop a governmental response to these changes. The primary thrust of [the consultant's] advice was that the City should be concerned about the tendency of a cable system to become a natural monopoly. Much discussion in the City Council centered around a supposed unfair advantage that [petitioner] had because it was already operating in Boulder. Members of the Council, and the City Manager, expressed fears that [petitioner might] not be the best cable operator for Boulder, but would nonetheless be the only operator because of its head start in the area. The Council wanted to create a situation in which other cable companies could make offers and not be hampered by the possibility that [petitioner] would build out the whole area before they even arrived." Ibid. 7 The preamble to this ordinance offered the following declarations as justification for its enactment: "[C]able television companies have within recent months displayed interest in serving the community and have requested the City Council to grant [them] permission to use the public right-of-way in providing that service; and ". . . the present permittee, [petitioner], has indicated that it intends to extend its services in the near future . . .; and ". . . the City Council finds that such an extension . . . would result in hindering the ability of other companies to compete in the Boulder market; and ". . . the City Council intends to adopt a model cable television permit ordinance, solicit applications from interested cable television companies, evaluate such applications, and determine whether or not to grant additional permits . . . [within] 3 months, and finds that an extension of service by [petitioner] would result in a disruption of this application and evaluation process; and ". . . the City Council finds that placing temporary geographical limitations upon the operations of [petitioner] would not impair the present services offered by [it] to City of Boulder residents, and would not impair [its] ability . . . to improve those services within the area presently served by it." Boulder, Colo., Ordinance No. 4473 (1979). 8 The Council reached this conclusion despite BCC's statement to the contrary, see n.5, supra. 9 26 Stat. 209, as amended, 15 U.S.C. § 1. Section 1 of the Sherman Act provides in pertinent part that "[e]very contract, combination . . ., or conspiracy, in restraint of trade or commerce among the several States . . ., is declared to be illegal." Petitioner also alleged, inter alia, that the city and BCC were engaged in a conspiracy to restrict competition by substituting BCC for petitioner. The District Court noted that although petitioner had gathered some circumstantial evidence that might indicate such a conspiracy, the evidence was insufficient to establish a probability that petitioner would prevail on this claim. 485 F.Supp., at 1038. 10 The District Court also held that no per se antitrust violation appeared on the record before it, and that petitioner was not protected by the First Amendment from all regulation attempted by the city. Id., at 1039-1040. 11 The majority cited California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980), as support for its reading of City of Lafayette, and concluded "that City of Lafayette is not applicable to a situation wherein the governmental entity is asserting a governmental rather than proprietary interest, and that instead the Parker-Midcal doctrine is applicable to exempt the City from antitrust liability." 630 F.2d, at 708. The dissent urged affirmance, agreeing with the District Court's analysis of the antitrust exemption issue. Id., at 715-718 (Markey, C. J., United States Court of Customs and Patent Appeals, sitting by designation, dissenting). The dissent also considered the city's actions to violate "[c]ommon principles of contract law and equity," id., at 715, as well as the First Amendment rights of petitioner and its customers, both actual and potential, id., at 710-714. The petition for certiorari did not present the First Amendment question, and we do not address it in this opinion. 12 The Court of Appeals described the applicable standard as follows: "[I]t is not necessary to point to an express statutory mandate for each act which is alleged to violate the antitrust laws. It will suffice if the challenged activity was clearly within the legislative intent. Thus, a trial judge may ascertain, from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of. On the other hand, the connection between a legislative grant of power and the subordinate entity's asserted use of that power may be too tenuous to permit the conclusion that the entity's intended scope of activity encompassed such conduct. . . . A district judge's inquiry on this point should be broad enough to include all evidence which might show the scope of legislative intent." 532 F.2d, at 434-435 (footnote and citation omitted). 13 THE CHIEF JUSTICE, in a concurring opinion, focused on the nature of the challenged activity rather than the identity of the parties to the suit. 435 U.S., at 420, 98 S.Ct., at 1140. He distinguished between "the proprietary enterprises of municipalities," id., at 422, 98 S.Ct., at 1141 (footnote omitted), and their "traditional government functions," id., at 424, 98 S.Ct., at 1142, and viewed the Parker exemption as extending to municipalities only when they engaged in the latter. 14 In Midcal we held that a California resale price maintenance system, affecting all wine producers and wholesalers within the State, was not entitled to exemption from the antitrust laws. In so holding, we explicitly adopted the principle, expressed in the plurality opinion in City of Lafayette, that anticompetitive restraints engaged in by state municipalities or subdivisions must be "clearly articulated and affirmatively expressed as state policy" in order to gain an antitrust exemption. Midcal, 445 U.S., at 105, 100 S.Ct., at 943. The price maintenance system at issue in Midcal was denied such an exemption because it failed to satisfy the "active state supervision" criterion described in City of Lafayette, 435 U.S., at 410, 98 S.Ct., at 1135, as underlying our decision in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2697, 53 L.Ed.2d 810 (1977). Because we conclude in the present case that Boulder's moratorium ordinance does not satisfy the "clear articulation and affirmative expression" criterion, we do not reach the question whether that ordinance must or could satisfy the "active state supervision" test focused upon in Midcal. 15 Denver Urban Renewal Authority v. Byrne, Colo., 618 P.2d 1374, 1381 (1980), quoting Four-County Metropolitan Capital Improvement District v. Board of County Comm'rs, 149 Colo. 284, 294, 369 P.2d 67, 72 (1962) (emphasis in original). The Byrne court went on to state that "by virtue of Article XX, a home rule city is not inferior to the General Assembly concerning its local and municipal affairs." Colo., 618 P.2d, at 1381. Petitioner strongly disputes respondent city's premise and its construction of Byrne, citing City and County of Denver v. Sweet, 138 Colo. 41, 48, 329 P.2d 441, 445 (1958), City and County of Denver v. Tihen, 77 Colo. 212, 219-220, 235 P. 777, 780-781 (1925), and 2 E. McQuillin, Municipal Corporations § 9.08a, p. 638 (1979), as contrary authority. But it is not for us to determine the correct view on this issue as a matter of state law. Parker affords an exemption from federal antitrust laws, based upon Congress' intentions respecting the scope of those laws. Thus the availability of the Parker exemption is and must be a matter of federal law. 16 Boulder cites the decision of the Colorado Supreme Court in Manor Vail Condominium Assn. v. Vail, 199 Colo. 62, 66-67, 604 P.2d 1168, 1171-1172 (1980), as authority for the proposition that the regulation of cable television is a local matter. Petitioner disputes this proposition and Boulder's reading of Manor Vail, citing in rebuttal United States v. Southwestern Cable Co., 392 U.S. 157, 168-169, 88 S.Ct. 1994, 2000-2001, 20 L.Ed.2d 1001 (1968), holding that cable television systems are engaged in interstate communication. In this contention, petitioner is joined by the State of Colorado, which filed an amicus brief in support of petitioner. For the purposes of this decision we will assume, without deciding, that respondent city's enactment of the moratorium ordinance under challenge here did fall within the scope of the power delegated to the city by virtue of the Colorado Home Rule Amendment. 17 Respondent city urges that the only distinction between the present case and Parker is that here the "act of government" is imposed by a home rule city rather than by the state legislature. Under Parker and Colorado law, the argument continues, this is a distinction without a difference, since in the sphere of local affairs home rule cities in Colorado possess every power once held by the state legislature. 18 Boulder also contends that its moratorium ordinance qualifies for antitrust immunity under the test set forth by THE CHIEF JUSTICE in his City of Lafayette concurrence, see n. 13, supra, because the challenged activity is clearly a "traditional government function," rather than a "proprietary enterprise." 19 Antitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise. They are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms. And the freedom guaranteed each and every business, no matter how small, is the freedom to compete—to assert with vigor, imagination, devotion, and ingenuity whatever economic muscle it can muster." United States v. Topco Associates, Inc., 405 U.S. 596, 610, 92 S.Ct. 1126, 1135, 31 L.Ed.2d 515 (1972). 20 See City of Lafayette, 435 U.S., at 394-397, 98 S.Ct., at 1127-1128. We hold today only that the Parker v. Brown exemption was no bar to the District Court's grant of injunctive relief. This case's preliminary posture makes it unnecessary for us to consider other issues regarding the applicability of the antitrust laws in the context of suits by private litigants against government defendants. As we said in City of Lafayette, "[i]t may be that certain activities which might appear anticompetitive when engaged in by private parties, take on a different complexion when adopted by a local government." 435 U.S., at 417, n.48, 98 S.Ct., at 1139, n.48. Compare, e.g., National Society of Professional Engineers v. United States, 435 U.S. 679, 687-692, 98 S.Ct. 1355, 1363-1365, 55 L.Ed.2d 637 (1978) (considering the validity of anticompetitive restraint imposed by private agreement), with Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 133, 98 S.Ct. 2207, 2217-2218, 57 L.Ed.2d 91 (1978) (holding that anticompetitive effect is an insufficient basis for invalidating a state law). Moreover, as in City of Lafayette, supra, at 401-402, 98 S.Ct., at 1130-1131, we do not confront the issue of remedies appropriate against municipal officials. 1 Cf. Cantor v. Detroit Edison Co., 428 U.S. 579, 615, 96 S.Ct. 3110, 3129, 49 L.Ed.2d 1141 (Stewart, J., dissenting) (the Court's holding "will surely result in disruption of the operation of every state-regulated public utility company in the Nation and in the creation of 'the prospect of massive treble damage liabilities' ") (quoting Posner, The Proper Relationship Between State Regulation and the Federal Antitrust Laws, 49 N.Y.U.L.Rev. 693, 728 (1974)). See also United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 176, n.10, 101 S.Ct. 453, 460, n.10, 66 L.Ed.2d 368. 2 See 428 U.S., at 585-592, 96 S.Ct., at 3115-3118 (opinion of STEVENS, J.). The point was made explicit in two passages of the plurality opinion. In a footnote, the plurality stated: "The cumulative effect of these carefully drafted references unequivocally differentiates between official action, on the one hand, and individual action (even when commanded by the State), on the other hand." Id., at 591, n.24, 96 S.Ct., at 3118, n.24. The point was repeated in the text: "The federal statute proscribes the conduct of persons, not programs, and the narrow holding in Parker concerned only the legality of the conduct of the state officials charged by law with the responsibility for administering California's program. What sort of charge might have been made against the various private persons who engaged in a variety of different activities implementing that program is unknown and unknowable because no such charges were made." Id., at 601, 96 S.Ct., at 3122 (footnote omitted). The footnote omitted in the above quotation stated: "Indeed, it did not even occur to the plaintiff that the state officials might have violated the Sherman Act; that question was first raised by this Court." Id., at 601, n.42, 96 S.Ct., at 3122, n.42. See Bates v. State Bar of Arizona, 433 U.S. 350, 361, 97 S.Ct. 2691, 2697, 53 L.Ed.2d 810 ("[O]bviously, Cantor would have been an entirely different case if the claim had been directed against a public official or public agency, rather than against a private party"). 1 Most challenges to municipal ordinances undoubtedly will be made pursuant to § 1. One of the elements of a § 1 violation is proof of a contract, combination, or conspiracy. It may be argued that municipalities will not face liability under § 1, because it will be difficult to allege that the enactment of an ordinance was the product of such a contract, combination, or conspiracy. The ease with which the ordinance in the instant case has been labeled a "contract" will hardly give municipalities solace in this regard. 2 It will take a considerable feat of judicial gymnastics to conclude that municipalities are not subject to treble damages to compensate any person "injured in his business or property." Section 4 of the Clayton Act, 15 U.S.C. § 15, is mandatory: "Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws . . . shall recover threefold the damages by him sustained." See City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 442-443, 98 S.Ct. 1123, 1151-52, 55 L.Ed.2d 364 (1978) (BLACKMUN, J., dissenting). 3 During the Lochner era, this Court's interpretation of the Due Process Clause complemented its antitrust policies. This Court sought to compel competitive behavior on the part of private enterprise and generally forbade government interference with competitive forces in the marketplace. See Strong, The Economic Philosophy of Lochner: Emergence, Embrasure and Emasculation, 15 Ariz.L.Rev. 419, 435 (1973). 4 Since a municipality does not violate antitrust laws when it enacts legislation pre-empted by the Sherman Act, there will be no problems with the remedy. Pre-empted state or local legislation is simply invalid and unenforceable. 5 The Midcal standards are not applied until it is either determined or assumed that the regulatory program would violate the Sherman Act if it were conceived and operated by private persons. See Parker v. Brown, 317 U.S., at 350, 63 S.Ct., at 313; California Retail Liquor Dealers Assn. v. Midcal Aluminum Inc., 445 U.S. 97, 102-103, 100 S.Ct. 937, 941-942, 63 L.Ed.2d 233 (1980). A statute is not pre-empted simply because some conduct contemplated by the statute might violate the antitrust laws. See Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 45-46, 86 S.Ct. 1254, 1260-61, 16 L.Ed.2d 336 (1966). Conversely, reliance on a state statute does not insulate a private party from liability under the antitrust laws unless the statute satisfies the Midcal criteria. 6 The Court understandably avoids determining whether local ordinances must satisfy the "active state supervision" prong of the Midcal test. It would seem rather odd to require municipal ordinances to be enforced by the State rather than the city itself. 7 Seeing this opportunity to recapture the power it has lost over local affairs, the State of Colorado, joined by 22 other States, has supported petitioner as amicus curiae. It is curious, indeed, that these States now seek to use the Supremacy Clause as a sword, when they so often must defend their own enactments from its invalidating effects.

78

455 U.S. 1 102 S.Ct. 812 70 L.Ed.2d 778 WASHINGTON, Petitioner,v.Neil Martin CHRISMAN. No. 80-1349. Jan. 13, 1982. Syllabus by the Court An officer of the Washington State University police department observed a student (Overdahl) leave a dormitory carrying a bottle of gin; because Overdahl appeared to be under 21 (the minimum age allowable under Washington law for possession of alcoholic beverages), the officer stopped him and asked for identification. After Overdahl requested to retrieve his identification from his dormitory room, the officer accompanied him there and, while remaining in the open doorway watching Overdahl and his roommate (respondent), noticed what he believed to be marihuana seeds and a pipe lying on a desk in the room. The officer then entered the room, confirmed that the seeds were marihuana and determined that the pipe smelled of marihuana, and informed Overdahl and respondent of their rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The students indicated their willingness to waive such rights, and after the officer asked if there were any other drugs in the room, respondent gave him a box which contained more marihuana and cash. After a second officer arrived, the students voluntarily consented, orally and in writing, to a search of the room, which yielded more marihuana and another controlled substance. Respondent was later charged with two counts of possessing the controlled substances and, after denial of his pretrial motion to suppress the evidence seized in the room, was convicted. The Washington Court of Appeals affirmed, but the Washington Supreme Court reversed. It held that, although Overdahl had been placed under lawful arrest, the officer had no right to enter the room and seize contraband without a warrant, and that because the students' consent to the subsequent search of the room was the fruit of the officer's initial entry, the contraband found during that search should also have been suppressed. Held: 1. It is not "unreasonable" under the Fourth Amendment for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest. The officer's need to ensure his own safety—as well as the integrity of the arrest—is compelling. Such surveillance is not an impermissible invasion of the privacy or personal liberty of an individual who has been arrested. Once the officer had placed Overdahl under lawful arrest, he was authorized to accompany him to his room for the purpose of obtaining identification. The officer had a right to remain literally at Overdahl's elbow at all times, and thus a showing of "exigent circumstances" was not necessary to warrant the officer's accompanying Overdahl from the public corridor of the dormitory into his room. Pp. 5-7. 2. The Fourth Amendment did not prohibit the seizure of the contraband discovered in plain view in the room. Regardless of where the officer was positioned with respect to the room's threshold when he observed the contraband, and regardless of whether he may have hesitated briefly at the doorway before entering the room, he did not abandon his right to be in the room with Overdahl whenever he considered it essential. Accordingly, he had the right to act as soon as he observed the seeds and pipe. Pp.8-9. 3. The seizure of other contraband taken from respondent's room pursuant to his valid consent did not violate the Fourth Amendment. He voluntarily produced marihuana after being informed of his Miranda rights, and he then consented to the search of the room. Thus, all of the seized contraband was properly admitted at his trial. Pp. 9-10. 94 Wash.2d 711, 619 P.2d 971, reversed and remanded. Ronald R. Carpenter, Colfax, Wash., for petitioner. Robert F. Patrick, Pullman, Wash., for respondent. Chief Justice BURGER delivered the opinion of the Court. 1 We granted certiorari to consider whether a police officer may, consistent with the Fourth Amendment, accompany an arrested person into his residence and seize contraband discovered there in plain view. 2 * On the evening of January 21, 1978, Officer Daugherty of the Washington State University police department observed Carl Overdahl, a student at the University, leave a student dormitory carrying a half-gallon bottle of gin. Because Washington law forbids possession of alcoholic beverages by persons under 21, Wash.Rev.Code § 66.44.270 (1981), and Overdahl appeared to be under age,1 the officer stopped him and asked for identification. Overdahl said that his identification was in his dormitory room and asked if the officer would wait while he went to retrieve it. The officer answered that under the circumstances he would have to accompany Overdahl, to which Overdahl replied "O.K." 3 Overdahl's room was approximately 11 by 17 feet and located on the 11th floor of the dormitory. Respondent Chrisman, Overdahl's roommate, was in the room when the officer and Overdahl entered. The officer remained in the open doorway, leaning against the doorjamb while watching Chrisman and Overdahl. He observed that Chrisman, who was in the process of placing a small box in the room's medicine cabinet, became nervous at the sight of an officer. 4 Within 30 to 45 seconds after Overdahl entered the room, the officer noticed seeds and a small pipe lying on a desk 8 to 10 feet from where he was standing. From his training and experience, the officer believed the seeds were marihuana and the pipe was of a type used to smoke marihuana. He entered the room and examined the pipe and seeds, confirming that the seeds were marihuana and observing that the pipe smelled of marihuana. 5 The officer informed Overdahl and Chrisman of their rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); each acknowledged that he understood his rights and indicated that he was willing to waive them. Officer Daugherty then asked whether the students had any other drugs in the room. The respondent handed Daugherty the box he had been carrying earlier, which contained three small plastic bags filled with marihuana and $112 in cash. At that point, Officer Daugherty called by radio for a second officer; on his arrival, the two students were told that a search of the room would be necessary. The officers explained to Overdahl and Chrisman that they had an absolute right to insist that the officers first obtain a search warrant, but that they could voluntarily consent to the search. Following this explanation, which was given in considerable detail, the two students conferred in whispers for several minutes before announcing their consent; they also signed written forms consenting to the search of the room. The search yielded more marihuana and a quantity of lysergic acid diethylamide (LSD), both controlled substances. 6 Respondent was charged with one count of possessing more than 40 grams of marihuana and one count of possessing LSD, both felonies under Wash.Rev.Code § 69.50.401(c) (1976) (current version at Wash.Rev.Code § 69.50.401(d) (1981)). A pretrial motion to suppress the evidence seized in the room was denied; respondent was convicted of both counts. On appeal, the Washington Court of Appeals affirmed the convictions, upholding the validity of the search. 24 Wash.App. 385, 600 P.2d 1316 (1979). 7 The Supreme Court of Washington reversed. 94 Wash.2d 711, 619 P.2d 971 (1980). It held that, although Overdahl had been placed under lawful arrest and "there was nothing to prevent Officer Daugherty from accompanying Overdahl to his room," the officer had no right to enter the room and either examine or seize contraband without a warrant. The court reasoned there was no indication that Overdahl might obtain a weapon or destroy evidence, and, with the officer blocking the only exit from the room, his presence inside the room was not necessary to prevent escape. Because the officer's entry into the room and his observations of its interior were not justified by "exigent circumstances," the seizure of the seeds and pipe were held not to fall within the plain-view exception to the Fourth Amendment's warrant requirement. The court went on to hold that because the students' consent to the subsequent search of the room was the fruit of the officer's initial entry, the contraband found during that search should also have been suppressed.2 8 Three justices dissented. They concluded it was reasonable for a police officer to keep an arrested person in sight at all times; accordingly, the officer had a legitimate reason for being in the place where he discovered the contraband, and was entitled, under the plain-view doctrine, to seize it. 9 We granted certiorari, 452 U.S. 959, 101 S.Ct. 3106, 69 L.Ed.2d 969 (1981), and reverse. II A. 10 The "plain view" exception to the Fourth Amendment warrant requirement permits a law enforcement officer to seize what clearly is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). Here, the officer had placed Overdahl under lawful arrest, and therefore was authorized to accompany him to his room for the purpose of obtaining identification.3 The officer had a right to remain literally at Overdahl's elbow at all times; nothing in the Fourth Amendment is to the contrary. 11 The central premise of the opinion of the Supreme Court of Washington is that Officer Daugherty was not entitled to accompany Overdahl from the public corridor of the dormitory into his room, absent a showing that such "intervention" was required by "exigent circumstances." We disagree with this novel reading of the Fourth Amendment. The absence of an affirmative indication that an arrested person might have a weapon available or might attempt to escape does not diminish the arresting officer's authority to maintain custody over the arrested person. See Pennsylvania v. Mimms, 434 U.S. 106, 109-110, 98 S.Ct. 330, 332-333, 54 L.Ed.2d 331 (1977); United States v. Robinson, 414 U.S. 218, 234-236, 94 S.Ct. 467, 476-477, 38 L.Ed.2d 427 (1973). Nor is that authority altered by the nature of the offense for which the arrest was made. 12 Every arrest must be presumed to present a risk of danger to the arresting officer. Cf. United States v. Robinson, supra, at 234, n.5, 94 S.Ct., at 476, n.5. There is no way for an officer to predict reliably how a particular subject will react to arrest or the degree of the potential danger. Moreover, the possibility that an arrested person will attempt to escape if not properly supervised is obvious. Although the Supreme Court of Washington found little likelihood that Overdahl could escape from his dormitory room, an arresting officer's custodial authority over an arrested person does not depend upon a reviewing court's after-the-fact assessment of the particular arrest situation. Cf. New York v. Belton, 453 U.S. 454, 458-460, 101 S.Ct. 2860, 2863-2864, 69 L.Ed.2d 768 (1981); United States v. Robinson, supra, 414 U.S., at 235, 94 S.Ct., at 476. 13 We hold, therefore, that it is not "unreasonable" under the Fourth Amendment for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest. The officer's need to ensure his own safety—as well as the integrity of the arrest—is compelling. Such surveillance is not an impermissible invasion of the privacy or personal liberty of an individual who has been arrested.4 14 It follows that Officer Daugherty properly accompanied Overdahl into his room, and that his presence in the room was lawful. With restraint, the officer remained in the doorway momentarily, entering no farther than was necessary to keep the arrested person in his view. It was only by chance that, while in the doorway, the officer observed in plain view what he recognized to be contraband. Had he exercised his undoubted right to remain at Overdahl's side, he might well have observed the contraband sooner. B 15 Respondent nevertheless contends that the officer lacked authority to seize the contraband, even though in plain view, because he was "outside" the room at the time he made his observations. The Supreme Court of Washington noted that "[t]he record is in conflict as to whether Officer Daugherty stood in the doorway and then entered the room or whether, while in the doorway, he was in fact in the room." 94 Wash.2d, at 716, 619 P.2d, at 974. It concluded, however, that it "need not . . . let the result be determined by such niceties," and assumed for purposes of its decision that the officer "was in the room at the time he observed the seeds and pipe." Ibid. We agree that on this record "such niceties" are not relevant. It is of no legal significance whether the officer was in the room, on the threshold, or in the hallway, since he had a right to be in any of these places as an incident of a valid arrest. 16 Respondent's argument appears to be that, even if the officer could have stationed himself "inside" the room had he done so immediately upon Overdahl's entry, his 30- to 45-second hesitation was fatal; and that having chosen to remain in the doorway, the officer was precluded from proceeding further to seize the contraband. We reject this contention. Respondent's argument, if accepted, would have the perverse effect of penalizing the officer for exercising more restraint than was required under the circumstances. Moreover, it ignores the fundamental premise that the Fourth Amendment protects only against unreasonable intrusions into an individual's privacy. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). 17 The "intrusion" in this case occurred when the officer, quite properly, followed Overdahl into a private area to a point from which he had unimpeded view of and access to the area's contents and its occupants. His right to custodial control did not evaporate with his choice to hesitate briefly in the doorway rather than at some other vantage point inside the room. It cannot be gainsaid that the officer would have had unrestricted access to the room at the first indication that he was in danger, or that evidence might be destroyed—or even upon reassessment of the wisdom of permitting a distance between himself and Overdahl. 18 We therefore conclude that, regardless of where the officer was positioned with respect to the threshold, he did not abandon his right to be in the room whenever he considered it essential. Accordingly, he had the right to act as soon as he observed the seeds and pipe.5 This is a classic instance of incriminating evidence found in plain view when a police officer, for unrelated but entirely legitimate reasons, obtains lawful access to an individual's area of privacy. The Fourth Amendment does not prohibit seizure of evidence of criminal conduct found in these circumstances.6 III 19 Since the seizure of the marihuana and pipe was lawful, we have no difficulty concluding that this evidence and the contraband subsequently taken from respondent's room were properly admitted at his trial. Respondent voluntarily produced three bags of marihuana after being informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He then consented, in writing, to a search of the room, after being advised that his consent must be voluntary and that he had an absolute right to refuse consent and demand procurement of a search warrant. The seizure of the drugs pursuant to respondent's valid consent did not violate the Fourth Amendment.7 20 The judgment of the Supreme Court of Washington is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. 21 So ordered. 22 Justice WHITE, with whom Justice BRENNAN and Justice MARSHALL join, dissenting. 23 The arrest in this case was made on the street. It gave Officer Daugherty no authority to enter Overdahl's quarters without his consent. But Overdahl wanted to retrieve his identification from his room; if Daugherty was willing for Overdahl to do so, he could properly condition his consent on accompanying Overdahl and keeping him under close surveillance. Accordingly, when Overdahl entered his room, Daugherty could stay as close to Overdahl as he deemed necessary to protect himself and maintain control over his arrestee. If it had been reasonably necessary for Daugherty to enter the room in pursuit of these purposes, he would not have violated any of Overdahl's Fourth Amendment rights. It is also plain enough that he was entitled to stand in the doorway and keep Overdahl in sight. 24 The record in this case is clear, however, that Daugherty did not leave the doorway and enter the room in order to protect himself or maintain control over Overdahl. Daugherty's uncontradicted testimony was that he entered the room solely to confirm his suspicion that the seeds and the seashell he had observed from the doorway were marihuana seeds and a seashell pipe that had been used to smoke marihuana.1 Daugherty made no claim that he entered the room as a necessary incident to the permission given Overdahl to secure his identification. Rather, he claimed that the entry was justified because of what was in plain view on the desk inside the room. 25 The plain-view doctrine, however, does not authorize an officer to enter a dwelling without a warrant to seize contraband merely because the contraband is visible from outside the dwelling. This is settled law. As the Court said in Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564 (1971): 26 "[P]lain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent 'exigent circumstances.' Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure. Taylor v. United States, 286 U.S. 1 [52 S.Ct. 466, 76 L.Ed. 951]; Johnson v. United States, 333 U.S. 10 [68 S.Ct. 367, 92 L.Ed. 436]; McDonald v. United States, 335 U.S. 451 [69 S.Ct. 191, 93 L.Ed. 153]; Jones v. United States, 357 U.S. 493, 497-498 [78 S.Ct. 1253, 1256-1257, 2 L.Ed.2d 1514]; Chapman v. United States, 365 U.S. 610 [81 S.Ct. 776, 5 L.Ed.2d 828]; Trupiano v. United States, 334 U.S. 699 [68 S.Ct. 1229, 92 L.Ed. 1663]."2 27 Coolidge emphasized that the plain-view doctrine applies only after a lawful search is in progress or the officer was otherwise legally present at the place of the seizure. The initial intrusion must be justified by a warrant, by an exception to the warrant requirement, or by other circumstances authorizing his presence. 28 If a police officer passing by an open door of a home sees incriminating evidence within the house, his observation may provide probable cause for the issuance of a search warrant. Yet the officer may not enter the home without a warrant unless an exception to the warrant requirement applies.3 This rule is fully supported by Coolidge v. New Hampshire, supra, and the cases cited in the Court's opinion in that case.4 Any contrary rule would severely undercut the protection afforded by the Fourth Amendment, for it is the physical entry of the home that is the chief evil against which the Amendment is directed. Payton v. New York, 445 U.S. 573, 585-586, 100 S.Ct. 1371, 1379-1380, 63 L.Ed.2d 639 (1980); United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134-2135, 32 L.Ed.2d 752 (1972). 29 The Court does not purport to hold otherwise. There is apparent agreement that the seizure in this case is consistent with the Fourth Amendment only if the officer was legally where he was when he made the seizure. Neither does the Court purport to find that Daugherty's presence in the room was in fact necessary to effectuate the arrest or to protect the officer. To do so would require contradicting Daugherty's own testimony. Rather, the Court asserts that Daugherty could have remained at Overdahl's elbow, that he could have entered the room wholly apart from his observation of the seeds, and that the case should be judged as though Daugherty had found it necessary to enter the room for the purpose of guarding Overdahl. Under this approach, the officer's presence at the desk where he made the seizure should be deemed lawful. 30 The difficulty with this is not merely that the officer himself did not suggest that he entered the room to maintain control over Overdahl or to protect himself. The more basic issue is whether the Court is justified in concluding as a matter of law that the circumstances would have warranted an entry for those reasons. The trial court did not sustain the entry on this basis, and the Washington Supreme Court expressly held that there were no exigent circumstances connected with Overdahl's arrest and custody that gave Daugherty sufficient reason to enter the room. I am unwilling on this record to decide as a matter of law what is more properly to be resolved as a matter of fact; and I would not differ with the state court on the record we now have before us. 31 I perceive no justification for what is in effect a per se rule that an officer in Daugherty's circumstances could always enter the room and stay at the arrestee's elbow. This would be true only if there were no limits to the conditions which the officer could attach when he permits his charge to return to his room. I doubt, for example, that he could insist that he be permitted to search desks, closets, drawers, or cabinets. Likewise, he should not be permitted to invade living quarters any more than is necessary to maintain control and protect himself. Bright-line rules are indeed useful and sometimes necessary, cf. Pennsylvania v. Mimms, 434 U.S. 106, 109-110, 98 S.Ct. 330, 332-333, 54 L.Ed.2d 331 (1977); United States v. Robinson, 414 U.S. 218, 234-236, 94 S.Ct. 467, 476-477, 38 L.Ed.2d 427 (1973), but the Court should move with some care where the home or living quarters are involved. 32 This is not a case, therefore, involving punishing an officer for entering a room for the wrong reason when there was a perfectly legal basis for his doing so. See Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978); Massachusetts v. Painten, 389 U.S. 560, 564-565, 88 S.Ct. 660, 662-663, 19 L.Ed.2d 770 (1968) (WHITE, J., dissenting). This is a case where the record before us does not demonstrate that it was necessary for the officer to enter the room as an incident to his custodial arrest. He thus had no legal basis for being in the room unless his sighting of the seeds permitted him to be there. The Court agrees that the plain-view doctrine does not provide that justification. 33 For me, the case comes down to whether the trial court properly found that the officer's observation from the doorway furnished exigent circumstances for the entry and seizure. The Washington Supreme Court did not review this finding of the trial court, but it should have before setting the conviction aside. I would therefore vacate and remand for this purpose. 1 In addition, University regulations prohibit possession of alcoholic beverages on University property. Tr. 4, 34. At the suppression hearing, Officer Daugherty testified that, because of these regulations, he would have stopped Overdahl without regard to his age. Id., at 6-7. 2 The opinion of the Supreme Court of Washington repeatedly refers to the Fourth Amendment and our cases construing it. The court did not, however, cite Art. I, § 7, of the Washington Constitution, which provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." While respondent, relying on this latter provision, urges that we "treat the case as having been decided under the Washington State Constitution," it is clear that the court did not rest its decision on an independent state ground. 3 The trial court found that it was Overdahl who proposed to retrieve the identification, and, after being informed that Officer Daugherty would have to accompany him, agreed to the officer's presence. Respondent nevertheless claims that Overdahl was "coerced" to return to the room in violation of the Fifth Amendment, because he was in custody and had not yet been advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He argues that since identification would serve as proof of Overdahl's age—an element of the offense for which he had been arrested—the officer could not ask him for this "incriminating" evidence without first advising him of his rights to counsel and to remain silent. Assuming, arguendo, that Overdahl's Fifth Amendment rights were violated in some fashion, this does not vitiate the legality of his arrest, nor does it undercut the officer's right to maintain custody over an arrested person. The failure to give "Miranda warnings" might preclude introduction of incriminating statements made by Overdahl while in custody; but no such statements are even peripherally involved in this case. The act of going to the room was neither "incriminating" nor a "testimonial communication." Cf. Fisher v. United States, 425 U.S. 391, 408-414, 96 S.Ct. 1569, 1579-1582, 48 L.Ed.2d 39 (1976). 4 Indeed, were the rule otherwise, it is doubtful that an arrested person would ever be permitted to return to his residence, no matter how legitimate the reason for doing so. Such a rule would impose far greater restrictions on the personal liberty of arrested individuals than those occasioned here. 5 The circumstances of this case distinguish it significantly from one in which an officer, who happens to pass by chance an open doorway to a residence, observes what he believes to be contraband inside. See, e.g., Payton v. New York, 445 U.S. 573, 585-589, 100 S.Ct. 1371, 1379-1381, 63 L.Ed.2d 639 (1980); Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 369-370, 92 L.Ed. 436 (1948). 6 In light of our disposition, we need not decide whether, as the Washington Court of Appeals held, the likelihood that the contraband would be destroyed constituted an "exigent circumstance" independently justifying the officer's entry into the room. 7 We reject as frivolous the respondent's contention that, on the facts presented here, Officer Daugherty was required to knock and announce his presence at the doorway prior to entering the room. 1 The officer testified at the suppression hearing that he had entered the room for just one purpose—"to affirm my beliefs and to seize the articles, if they were [contraband]." Tr. 44. The officer also testified: "I stood in the doorway without entering, actually physically entering the room. . . . I was standing against the doorjamb. . . . I was not in the room. I was in the doorway." Id., at 7, 9, 21. The trial court stated in its memorandum opinion that "[t]he officer stood in the doorway, and watched [Overdahl]," observed the seashell pipe and the seeds from the doorway, and "then entered the room and examined the pipe and seeds closely." App. 47 (emphasis added). Similarly, the Court of Appeals stated: "Prior to entering the room, the officer saw from his vantage point in the doorway what he believed to be contraband. Only at that time, did he cross the threshold and seize the pipe and marijuana seeds." 24 Wash.App. 385, 389, 600 P.2d 1316, 1318 (1979) (emphasis added). As I read the Supreme Court of Washington's opinion, the court held that whether or not the officer had physically entered the room by standing in the doorway, his presence in the doorway was sufficiently intrusive that his observations were unlawful unless he could justify his presence. The court concluded that the officer should have remained outside the room, since there was no indication that Overdahl was likely to escape, destroy evidence, or seize a weapon. 2 One of the many cases cited in Coolidge to illustrate this point was Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951 (1932). The police officers in Taylor had looked through a small opening in a garage and had seen cardboard cases inside the garage that they believed contained contraband liquor. The officers could smell the odor of whiskey coming from the garage. Yet this Court held that they had violated the Fourth Amendment by entering the garage and seizing the whiskey without obtaining a warrant. 3 There is no contention in this case that by entering the dormitory building the officer had already entered respondent's dwelling. The officer himself testified at trial that a dormitory room is considered a "private area" but that the public has access to the hallway. Tr. 37. 4 Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), is not to the contrary. There, an automobile had been impounded and towed to a police station. The windows of the car were open, the doors were unlocked, and it had begun to rain. The Court held that the Fourth Amendment did not require the police officer to obtain a warrant before opening the door of the car to roll up the car window, for this was simply "a measure taken to protect the car while it was in police custody." Id., at 236, 88 S.Ct., at 993. Harris did not rely on the plain-view doctrine to justify the warrantless intrusion into the automobile. The Court emphasized that the police officer had already lawfully entered the car when he saw incriminating evidence in plain view inside the car and seized it: "Once the door had lawfully been opened, the registration card, with the name of the robbery victim on it, was plainly visible. It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence." Ibid. (emphasis added). The broad wording of the second sentence quoted above has apparently created some confusion regarding the plain-view doctrine. One commentator remarked: "The hardest conceptual problem attending the plain view doctrine is to grasp that it is not a universal statement of the right of a policeman to seize after seeing something in open view; it is rather a limited statement of that right in one of its several instances—following a valid intrusion. . . . The source of difficulty is that the harbinger case, Harris v. United States, spoke carelessly in universal terms: 'It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure. . . .' "Seeing something in open view does not, of course, dispose . . . of the problem of crossing constitutionally protected thresholds." Moylan, The Plain View Doctrine: Unexpected Child of the Great "Search Incident" Geography Battle," 26 Mercer L.Rev. 1047, 1096 (1975). See also 1 W. LaFave, Search and Seizure § 2.2(a) (1978). This problem of "crossing constitutionally protected thresholds" without a warrant is easily resolved if the so-called "automobile exception" to the warrant requirement applies, for that exception justifies a warrantless entry into the automobile to seize contraband in plain view inside the car. In Colorado v. Bannister, 449 U.S. 1, 101 S.Ct. 42, 66 L.Ed.2d 1 (1980), for example, we held that an officer's observation of items in plain view inside a car did not violate the occupant's Fourth Amendment rights. Id., at 4, n.4, 101 S.Ct., at 44, n.4. The officer's observations could therefore be used to establish probable cause to search the car. Yet it was also necessary to justify the warrantless intrusion into the car. We did not seek to justify that intrusion by relying on the plain-view doctrine. Rather, we held that the warrantless entry was justified under the "automobile exception" to the warrant requirement. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

01

455 U.S. 72 102 S.Ct. 851 70 L.Ed.2d 833 KAISER STEEL CORPORATION, Petitionerv.Julius MULLINS et al. No. 80-1345. Argued Nov. 10, 1981. Decided Jan. 13, 1982. Syllabus Petitioner coal producer, as a party to a collective-bargaining agreement between the United Mine Workers of America and hundreds of coal producers, agreed to contribute to specified employee health and retirement funds on the basis of each ton of coal it produced and each hour worked by its covered employees. The agreement also required an employer to report its purchases of coal from producers not under contract with the union and to make contributions to the union welfare funds on the basis of such purchases. After petitioner failed to report and make contributions as required by the "purchased-coal" clause, respondents, the trustees of the union trust funds, filed suit in Federal District Court to enforce the collective-bargaining agreement. Petitioner admitted its failure to comply with the purchased coal clause, but contended that the clause was void and unenforceable as violative of §§ 1 and 2 of the Sherman Act and § 8(e) of the National Labor Relations Act (NLRA), which forbids collective-bargaining agreements whereby the employer agrees to cease doing business with, or to cease handling the products of, another employer (hot cargo provision). The District Court entered summary judgment for respondents, and the Court of Appeals affirmed. Both courts rejected petitioner's defense without passing on the legality of the purchased-coal clause under either the Sherman Act or the NLRA. Held : Petitioner was entitled to plead and have adjudicated its defense based on the alleged illegality of the purchased-coal clause. Pp. 77-78. (a) Illegal promises will not be enforced in cases controlled by federal law. This rule is not rendered inapplicable here on the asserted grounds that employers' contributions to union funds are not, in themselves and standing alone, illegal acts and that ordering petitioner to pay would therefore not command conduct that is inherently contrary to public policy. Petitioner's obligation to pay money to the union funds arose from and was measured by its purchases from other producers who did not contribute to the union funds, and if this obligation is illegal under the antitrust or labor laws, to order petitioner to pay would command unlawful conduct. Pp. 77-83. (b) Although as a general rule federal courts do not have jurisdiction over activity that is arguably subject to § 8 of the NLRA and must defer to the exclusive competence of the National Labor Relations Board to determine what is and is not an unfair labor practice, a federal court has a duty to determine whether a contract violates federal law before enforcing it. Section 8(e) renders hot-cargo clauses void at their inception and at all times unenforceable by federal courts. Thus, where a § 8(e) defense is raised by a party which § 8(e) was designed to protect, and where the defense is not directed to a collateral matter but to the portion of the contract for which enforcement is sought, a court must entertain the defense. Pp. 83-86. (c) Assuming, arguendo, that § 306(a) of the Multiemployer Pension Plan Amendments Act of 1980—which requires employers to make contributions to a multiemployer pension plan in accordance with the employer's obligation under the terms of the plan or a collective-bargaining agreement—is applicable to this case, it does not alter the result. Section 306(a) does not abolish all illegality defenses but explicitly requires employers to contribute to pension funds only where doing so would not be "inconsistent with law," and it was intended to simplify collection actions by precluding only defenses that are "unrelated" or "extraneous" to the employer's promise to make contributions. Nor does the statute's language or history indicate that Congress intended to implicitly repeal the antitrust laws, the labor laws, or any other statute which might be raised as a defense to a provision in a collective-bargaining agreement requiring an employer to contribute to a pension fund. Pp. 86-88. 206 U.S.App.D.C. 334, 642 F.2d 1302, reversed and remanded. A. Douglas Melamed, Washington, D.C., for petitioner. Stephen J. Pollak, Washington, D.C., for respondents. Barbara E. Etkind, Philadelphia, Pa., for the U.S. as amicus curiae by special leave of Court. Justice WHITE delivered the opinion of the Court. 1 The issue here is whether a coal producer, when it is sued on its promise to contribute to union welfare funds based on its purchases of coal from producers not under contract with the union, is entitled to plead and have adjudicated a defense that the promise is illegal under the antitrust and labor laws. 2 * The National Bituminous Coal Wage Agreement of 1974 is a collective-bargaining agreement between the United Mine Workers of America (UMW) and hundreds of coal producers, including steel companies such as petitioner Kaiser Steel Corp. The agreement required signatory employers to contribute to specified employee health and retirement funds. Section (d)(1) of Article XX required employers to pay specified amounts for each ton of coal produced and for each hour worked by covered employees. In addition, the section included a purchased-coal clause requiring employers to contribute to the trust specified amounts on "each ton of two thousand (2,000) pounds of bituminous coal after production by another operator, procured or acquired by [the employer] for use or for sale on which contributions to the appropriate Trusts as provided for in this Article have not been made. . . ."1 Section (d) also provided that employers would furnish the trustees with monthly statements showing the full amounts due the trust funds as well as the tons of coal produced, procured, or acquired for use or for sale. The parties agreed that if the clause requiring contributions based on purchased coal was held illegal by any court or agency, the union could demand negotiations with respect to a replacement for the invalidated provision.2 3 Kaiser operates a steel mill in California and coal mines in Utah and New Mexico. Its mines produce only high-volatile coal, so it must purchase mid-volatile coal used in steel manufacturing from another producer. Since 1959, Kaiser has purchased virtually all of its mid-volatile coal requirements from Mid-Continent Coal and Coke Co. Mid-Continent's employees are represented by the Redstone Workers' Association, and their wages and benefits during the period covered by the 1974 Agreement were equal or superior to those required by the UMW contract. Nevertheless, the UMW has repeatedly attempted to become the collective-bargaining representative for Mid-Continent's employees. According to affidavits submitted by Kaiser, the purchased-coal clause was not taken into account in calculating the needs and revenues of the various UMW trust funds during the negotiation of the 1974 Agreement.3 4 Kaiser complied with its obligation under the 1974 contract to make contributions based on the coal it produced and the hours worked by its miners. It did not, however, report the coal that it acquired from others or make contributions based on such purchased coal. After the expiration of the 1974 contract, the trustees of the UMW Health and Retirement Funds, respondents here, sued Kaiser seeking to enforce the latter's obligation to report and contribute with respect to coal not produced by Kaiser but acquired from others. Jurisdiction was asserted under § 301 of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U.S.C. § 185, and § 502 of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 891, 29 U.S.C. § 1132. Kaiser admitted its failure to report and contribute but defended on the ground, among others, that the agreement in these respects was void and unenforceable as violative of §§ 1 and 2 of the Sherman Act, 26 Stat. 209, 15 U.S.C. §§ 1 and 2, and § 8(e) of the NLRA, 73 Stat. 543, 29 U.S.C. § 158(e). The District Court did not pass on the legality of the purchased coal agreement under either the Sherman Act or the NLRA. It nevertheless rejected Kaiser's defense of illegality and granted the trustees' motion for summary judgment. 466 F.Supp. 911 (1979). The Court of Appeals affirmed, 206 U.S.App.D.C. 334, 642 F.2d 1302 (1980), also rejecting Kaiser's defense without adjudicating the legality of the purchased-coal clause. 5 We granted Kaiser's petition for certiorari raising the question, among others, whether the Court of Appeals had properly foreclosed its defense based on the illegality of its promise to report and contribute in connection with coal purchased from other producers. 451 U.S. 969, 101 S.Ct. 2044, 68 L.Ed.2d 347 (1981). We now reverse. II 6 There is no statutory code of federal contract law, but our cases leave no doubt that illegal promises will not be enforced in cases controlled by the federal law. In McMullen v. Hoffman, 174 U.S. 639, 19 S.Ct. 839, 43 L.Ed. 1117 (1899), two bidders for public work submitted separate bids without revealing that they had agreed to share the work equally if one of them were awarded the contract. One of the parties secured the work and the other sued to enforce the agreement to share. The Court found the undertaking illegal and refused to enforce it, saying: 7 "The authorities from the earliest time to the present unanimously hold that no court will lend its assistance in any way towards carrying out the terms of an illegal contract. In case any action is brought in which it is necessary to prove the illegal contract in order to maintain the action, courts will not enforce it. . . ." Id., at 654, 19 S.Ct., at 845. 8 "[T]o permit a recovery in this case is in substance to enforce an illegal contract, and one which is illegal because it is against public policy to permit it to stand. The court refuses to enforce such a contract and it permits defendant to set up its illegality, not out of any regard for the defendant who sets it up, but only on account of the public interest." Id., at 669, 19 S.Ct., at 851. 9 The rule was confirmed in Continental Wall Paper Co. v. Louis Voight & Sons Co., 212 U.S. 227, 29 S.Ct. 280, 53 L.Ed. 486 (1909), where the Court refused to enforce a buyer's promise to pay for purchased goods on the ground that the promise to pay was itself part of a bargain that was illegal under the antitrust laws. "In such cases the aid of the court is denied, not for the benefit of the defendant, but because public policy demands that it should be denied without regard to the interests of individual parties." Id., at 262, 29 S.Ct., at 292.4 10 Kaiser's position is that to require it to make contributions based on purchased coal would be to enforce a bargain that violates two different federal statutes, the Sherman Act and the NLRA. Sections 1 and 2 of the Sherman Act prohibit contracts, combinations, and conspiracies in restraint of trade, as well as monopolization and attempts to monopolize. Kaiser urges that the purchased-coal clause is illegal under these sections because it puts non-UMW producers at a disadvantage in competing for sales to concerns like Kaiser and because it penalizes Kaiser for shopping among sellers for the lowest available price.5 11 Section 8(e) of the NLRA forbids contracts between a union and an employer whereby the employer agrees to cease doing business with or to cease handling the products of another employer. Kaiser submits that being forced to contribute based on its purchases of coal from other employers violates § 8(e), the hot-cargo provision, because it penalizes Kaiser for dealing with other employers who do not have a contract with the union and because the major purpose of prohibiting hot-cargo agreements is to protect employers like Kaiser from being coerced into aiding the union in its organizational or other objectives with respect to other employers. 12 The Court of Appeals, like the District Court, declined to pass on the legality of the purchased-coal clause under either the Sherman Act or the NLRA. It was apparently of the view that even if the agreement was unlawful, the illegality defenses should not be sustained in this case. We disagree. None of the grounds offered by the Court of Appeals or by the respondents for rejecting Kaiser's defenses are persuasive. 13 We do not agree, in the first place, that if Kaiser's agreement to contribute based on purchased coal is assumed to be illegal under either the Sherman Act or the NLRA, its promise to contribute could be enforced without commanding unlawful conduct. The argument is that employers' contributions to union welfare funds are not, in themselves and standing alone, illegal acts and that ordering Kaiser to pay would therefore not demand conduct that is inherently contrary to public policy. Kaiser, however, did not make a naked promise to pay money to the union funds. The purchased-coal provision obligated it to pay only if it purchased coal from other employers and then only if contributions to the UMW funds had not been made with respect to that coal. Kaiser's obligation arose from and was measured by its purchases from other producers. If Kaiser's undertaking is illegal under the antitrust or the labor laws, it is because of the financial burden which the agreement attached to purchases of coal from non-UMW producers, even though they may have contributed to other employee welfare funds. It is plain enough that to order Kaiser to pay would command conduct that assertedly renders the promise an illegal undertaking under the federal statutes. 14 We do not agree that Kelly v. Kosuga, 358 U.S. 516, 79 S.Ct. 429, 3 L.Ed.2d 475 (1959), compels or even supports a contrary result. In that case, both petitioner and respondent were engaged in marketing onions. Petitioner agreed to buy a substantial portion of the onions owned by respondent. Petitioner and respondent mutually agreed that neither would deliver any onions to the futures market for the balance of the trading season. The agreement was for the purpose of fixing the price and limiting the amount of onions sold in the State of Illinois, thereby "creating a false and a fictitious market" for that produce. Id., at 517, 79 S.Ct., at 430. After petitioner defaulted on the payments due under the contract, respondent sued for the balance of the purchase price and was awarded summary judgment. Both the District Court and the Court of Appeals rejected petitioner's claim that his undertaking was unenforceable because part of the agreement violated the Sherman Act. This Court affirmed. The Court said that "[a]s a defense to an action based on contract, the plea of illegality based on violation of the Sherman Act has not met with much favor," id., at 518, 79 S.Ct., at 431, particularly where the plea is made by a purchaser in an action to recover from him the agreed price for goods sold. Various cases in this Court were cited to support the observation, and Continental Wall Paper Co. v. Louis Voight & Sons Co., 212 U.S. 227, 29 S.Ct. 280, 53 L.Ed. 486 (1909), where the defense was sustained, was distinguished as a case where a judgment for an excessive purchase price "would be to make the courts a party to the carrying out of one of the very restraints forbidden by the Sherman Act." Kelly v. Kosuga, supra, 358 U.S., at 520, 79 S.Ct., at 432. The Court went on to say that "[p]ast the point where the judgment of the Court would itself be enforcing the precise conduct made unlawful by the Act, the courts are to be guided by the overriding general policy . . . 'of preventing people from getting other people's property for nothing when they purport to be buying it.' " 358 U.S., at 520-521, 79 S.Ct., at 432 (quoting Continental Wall Paper Co. v. Louis Voight & Sons Co., supra, at 271, 29 S.Ct., at 296). Applying this approach to the facts before it, the Court observed: 15 "[W]hile the nondelivery agreement between the parties could not be enforced by a court, if its unlawful character under the Sherman Act be assumed, it can hardly be said to enforce a violation of the Act to give legal effect to a completed sale of onions at a fair price. . . . [W]here, as here, a lawful sale for a fair consideration constitutes an intelligible economic transaction in itself, we do not think it inappropriate or violative of the intent of the parties to give it effect even though it furnished the occasion for a restrictive agreement of the sort here in question." 358 U.S., at 521, 79 S.Ct., at 432. 16 Respondents construe Kosuga as standing for two general propositions: first, that when a contract is wholly performed on one side, the defense of illegality to enforcing performance on the other side will not be entertained;6 and second, that the express remedies provided by the Sherman Act are not to be added to by including the avoidance of contracts as a sanction.7 It is apparent from the opinion in that case, however, that both propositions were subject to the limitation that the illegality defense should be entertained in those circumstances where its rejection would be to enforce conduct that the antitrust laws forbid. In Kosuga, there were two promises, one to pay for purchased onions and the other to withhold onions from the market. The former was legal and could be enforced, the latter illegal and unenforceable. 17 Kosuga thus contemplated that the defense of illegality would be entertained in a case such as this. If the purchased-coal agreement is illegal, it is precisely because the promised contributions are linked to purchased coal and are a penalty for dealing with producers not under contract with the UMW. In Kosuga, withholding onions from the market was not in itself illegal and could have been done unilaterally. But the agreement to do so, as the Court recognized, was unenforceable. Here, employer contributions to union welfare funds may be quite legal more often than not, but an agreement linking contributions to purchased coal, if illegal, is subject to the defense of illegality. 18 Respondents' reliance on Lewis v. Benedict Coal Corp., 361 U.S. 459, 80 S.Ct. 489, 4 L.Ed.2d 442 (1960), is no more persuasive. There, as here, a collective-bargaining contract bound the coal company to contribute to an employee trust fund. When sued by the trustees for delinquent contributions, the employers defended on the ground that the union had violated the no-strike clause contained in the contract. Although the strikes were illegal, the Court held that the company's promise to contribute to the fund was independent of and not conditioned on the union's performance of its promise not to strike. Furthermore, the company was not entitled to a setoff against the trustees, who were innocent third parties, at least in the absence of some indication in the contract that the parties had intended to permit the employer to reduce its contributions by the amount of his damages caused by the striking unions. Just as in Kosuga, however, the promise that was enforced was not an illegal undertaking. Aside from the defense based on the union's default, there was no claim that the employer's promise to pay was illegal and unenforceable. The decision in no respect suggests that trustees could collect payments pursuant to a promise that itself violates the antitrust laws or the NLRA.8 III 19 We also do not agree that the question of the legality of the purchased-coal clause under § 8(e) of the NLRA was within the exclusive jurisdiction of the National Labor Relations Board and that the District Court was therefore without authority to adjudicate Kaiser's defense in this respect. The Board is vested with primary jurisdiction to determine what is or is not an unfair labor practice. As a general rule, federal courts do not have jurisdiction over activity which "is arguably subject to § 7 or § 8 of the [NLRA]," and they "must defer to the exclusive competence of the National Labor Relations Board." San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 780, 3 L.Ed.2d 775 (1959). See also Garner v. Teamsters, 346 U.S. 485, 490-491, 74 S.Ct. 161, 165-166, 98 L.Ed. 228 (1953). It is also well established, however, that a federal court has a duty to determine whether a contract violates federal law before enforcing it. "The power of the federal courts to enforce the terms of private agreements is at all times exercised subject to the restrictions and limitations of the public policy of the United States as manifested in . . . federal statutes. . . . Where the enforcement of private agreements would be violative of that policy, it is the obligation of courts to refrain from such exertions of judicial power." Hurd v. Hodge, 334 U.S. 24, 34-35, 68 S.Ct. 847, 853, 92 L.Ed. 1187 (1948) (footnotes omitted). 20 The "touchstone" and "central theme" of § 8(e) is the protection of neutral employers, such as Kaiser, which are caught in the middle of a union's dispute with a third party. National Woodwork Manufacturers Assn. v. NLRB, 386 U.S. 612, 624-626, 645, 87 S.Ct. 1250, 1257-1259, 1268, 18 L.Ed.2d 357 (1967). Section 8(e) provides not only that "it shall be an unfair labor practice" to enter an agreement containing a hot-cargo clause, but also that "any contract or agreement entered into heretofore or hereafter containing [a hot-cargo clause] shall be to such extent unenforcible and void." This strongly implies that a court must reach the merits of an illegality defense in order to determine whether the contract clause at issue has any legal effect in the first place. 21 That § 8(e) renders hot cargo clauses void at their inception and at all times unenforceable by federal courts is also evident from its legislative history. It was enacted to close a loophole created by Carpenters v. NLRB, 357 U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (1958) (Sand Door). There the Court held that the existence of a hot cargo clause was not a defense to an unfair labor practice charge brought by a union against an employer, emphasizing that observance of the clause was not unlawful. "Section 8(e) was designed to plug this gap in the legislation by making the 'hot cargo' clause itself unlawful. The Sand Door decision was believed by Congress . . . to create the possibility of damage actions against employers for breaches of 'hot cargo' clauses . . ." National Woodwork Manufacturers Assn. v. NLRB, supra, 386 U.S., at 634, 87 S.Ct., at 1263. If a union may not maintain a damages action for violation of a hot cargo clause, it also may not enforce a hot cargo clause in an action for specific performance. 22 That a federal court may determine the merits of Kaiser's § 8(e) defense is further supported by Connell Construction Co. v. Plumbers & Steamfitters, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975). There the petitioner filed suit claiming that an agreement between it and the respondent union violated §§ 1 and 2 of the Sherman Act. Respondent contended that the agreement was exempt from the antitrust laws because it was authorized by § 8(e). The Court of Appeals refused to decide whether § 8(e) permitted the agreement or whether the agreement constituted an unfair labor practice under § 8(e), holding that the NLRB "has exclusive jurisdiction to decide in the first instance what Congress meant in 8(e) and 8(b)(4)." Connell Construction Co. v. Plumbers and Steamfitters Local Union No. 100, 483 F.2d 1154, 1174 (CA5 1973) (footnote omitted). This Court reversed on the ground that "the federal courts may decide labor law questions that emerge as collateral issues in suits brought under independent federal remedies, including the antitrust laws." 421 U.S., at 626, 95 S.Ct., at 1837 (footnote omitted). See also Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 684-688, 85 S.Ct. 1596, 1599-1601, 14 L.Ed.2d 640 (1965). The Court then addressed the § 8(e) issue on the merits and found that § 8(e) did not allow the agreement at issue. 421 U.S., at 633, 95 S.Ct., at 1840. As a result, the agreement was subject to the antitrust laws, for the majority was persuaded that the legislative history did not suggest "labor-law remedies for § 8(e) violations were intended to be exclusive, or that Congress thought allowing antitrust remedies in cases like the present one would be inconsistent with the remedial scheme of the NLRA." Id., at 634, 95 S.Ct., at 1841 (footnote omitted). 23 In Connell, we decided the § 8(e) issue in the first instance. It was necessary to do so to determine whether the agreement was immune from the antitrust laws. Here a court must decide whether the purchased-coal clause violates § 8(e) in order to determine whether to enforce the clause. As the Court recently stated with respect to a statute which also provides that contracts which violate it are "void," "[a]t the very least Congress must have assumed that [the statute] could be raised defensively in private litigation to preclude the enforcement of . . . [a] contract." Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 18, 100 S.Ct. 242, 246, 62 L.Ed.2d 146 (1979). Therefore, where a § 8(e) defense is raised by a party which § 8(e) was designed to protect, and where the defense is not directed to a collateral matter but to the portion of the contract for which enforcement is sought, a court must entertain the defense. While only the Board may provide affirmative remedies for unfair labor practices, a court may not enforce a contract provision which violates § 8(e). Were the rule otherwise, parties could be compelled to comply with contract clauses, the lawfulness of which would be insulated from review by any court. IV 24 On September 26, 1980, nine days after the Court of Appeals issued the decision under review, Congress enacted legislation which respondents argue established a special rule governing the availability of illegality defenses in actions for delinquent contributions brought by pension fund trustees. It is urged that Congress intended to preclude employers from raising defenses such as those Kaiser has attempted to raise here. Section 306(a) of the Multiemployer Pension Plan Amendments Act of 1980, Pub.L. 96-364, 94 Stat. 1295, added § 515 to ERISA, which provides: 25 "Every employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such agreement." 29 U.S.C. § 1145 (1976 ed., Supp.V).9 26 The provision which was eventually enacted as § 306(a) was added to S. 1076 by the Senate Committee on Labor and Human Resources. The Committee explained that the provision was added because "simple collection actions brought by plan trustees have been converted into lengthy, costly and complex litigation concerning claims and defenses unrelated to the employer's promise and the plans' entitlement to the contributions," and steps must be taken to "simplify delinquency collection." Senate Committee on Labor and Human Resources, S. 1076—The Multiemployer Pension Plan Amendments Act of 1980: Summary and Analysis of Consideration, 96th Cong., 2d Sess. 44 (Comm. Print, Apr.1980) (1980 Senate Labor Committee Print) (emphasis added). During floor debate, Senator Williams and Representative Thompson10 explained the purpose and meaning of § 306(a) in the same language used in the Senate Labor Committee Print. Both legislators also stated that they endorsed cases such as Lewis v. Benedict Coal Corp., 361 U.S. 459, 80 S.Ct. 489, 4 L.Ed.2d 442 (1960); Huge v. Long's Hauling Co., 590 F.2d 457 (CA3 1978), cert. denied, 442 U.S. 918, 99 S.Ct. 2840, 61 L.Ed.2d 285 (1979); Lewis v. Mill Ridge Coals, Inc., 298 F.2d 552 (CA6 1962); and disapproved cases such as Washington Area Carpenters' Welfare Fund v. Overhead Door Co., 488 F.Supp. 816 (DC 1980), appeal pending, No. 80-1501 (CADC), and Western Washington Laborers-Employers Health and Security Trust Fund v. McDowell, 103 L.R.R.M. 2219 (WD Wash.1979), appeal pending, No. 80-3024 (CA9).11 27 Assuming, arguendo, that the 1980 Amendments are applicable to this case, they do not alter the result. Far from abolishing illegality defenses, § 306(a) explicitly requires employers to contribute to pension funds only where doing so would not be "inconsistent with law." Even if § 306(a) were construed as completely embracing the views expressed by Senator Williams and Representative Thompson, the statute would not require prohibiting Kaiser from raising defenses to the purchased-coal clause. The legislators did not say that employers should be prevented from raising all defenses; rather they spoke in terms of "unrelated" and "extraneous" defenses.12 As the United States points out in its brief, none of the cases the legislators endorsed "involved the enforcement of a contribution clause that itself was alleged to violate the law." Brief for United States as Amicus Curiae 28 (footnote omitted). Neither Lewis v. Benedict Coal Corp., supra, Huge v. Long's Hauling Co., supra, nor Lewis v. Mill Ridge Coals, Inc., supra, involved a defense based on the illegality of the very promise sought to be enforced. 28 Respondents' contention that § 306(a) permits only one defense to be raised in suits to recover delinquent contributions that the making of the payment itself violates § 302(a) of the LMRA—must be rejected for another reason. Respondents' argument necessarily assumes that in enacting § 306(a), Congress implicitly repealed the antitrust laws, the labor laws, and any other statute which might be raised as a defense to a provision in a collective-bargaining agreement requiring an employer to contribute to a pension fund. Since "repeals by implication are disfavored," Allen v. McCurry, 449 U.S. 90, 99, 101 S.Ct. 411, 417, 66 L.Ed.2d 308 (1980), " 'the intention of the legislature to repeal must be clear and manifest.' " TVA v. Hill, 437 U.S. 153, 189, 98 S.Ct. 2279, 2299, 57 L.Ed.2d 117 (1978), quoting Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351 (1936). The statutory language provides no basis for implying such a repeal, and nowhere in the legislative history is there any mention that § 306(a) might conflict with other laws.13 29 The judgment of the Court of Appeals is reversed,14 and the case is remanded for further proceedings consistent with this opinion. 30 So ordered. 31 Justice BRENNAN, with whom Justice MARSHALL and Justice BLACKMUN join, dissenting. 32 The salient facts of this case are not sufficiently stressed in the Court's opinion, and thus bear repeating. Kaiser Steel Corporation and the United Mine Workers (UMW) entered into a collective-bargaining agreement in 1974. As a part of that agreement, Kaiser promised to make contributions to certain UMW-designated employee health and retirement plan funds, based in part upon the amount of coal purchased by Kaiser from non-UMW mines. This purchased-coal clause obviously had value to Kaiser's UMW employees, because the agreement provided that if that clause were adjudged illegal, then the union could demand renegotiation of the contract in order to secure a quid pro quo for the invalidated clause. During the life of the contract, from 1974 to 1977, Kaiser's UMW employees fully performed their obligations under the contract. Kaiser, in contrast, did not pay a penny of the money that it had promised to pay under the purchased-coal clause. Instead, Kaiser failed to disclose the fact that it had purchased outside coal to which the clause applied, in plain violation of the reporting requirements of the 1974 agreement. In 1978—after Kaiser's UMW employees had lost their opportunity to renegotiate the 1974 agreement, and after they had fully performed their part of that bargain—Kaiser for the first time interposed its claim of illegality as a defense to respondent trustees' suit to recover the moneys promised to their plan under the purchased-coal clause. 33 " 'It has been often stated in similar cases that the defence [of illegality] is a very dishonest one, and it lies ill in the mouth of the defendant to allege it . . . .' " Kelly v. Kosuga, 358 U.S. 516, 519, 79 S.Ct. 429, 431, 3 L.Ed.2d 475 (1959), quoting McMullen v. Hoffman, 174 U.S. 639, 669, 19 S.Ct. 839, 850, 43 L.Ed. 1117 (1899). This observation is peculiarly apt in the present case. The defense of illegality lies ill indeed in the mouth of the Kaiser Steel Corporation. In my view, this case exemplifies the very sort of abuse that Congress intended to stop with the enactment of § 306(a) of the Multiemployer Pension Plan Amendments Act of 1980.1 34 * Section 306(a) of the 1980 Amendments reads as follows: 35 "DELINQUENT CONTRIBUTIONS 36 "Every employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such agreement." Pub.L. 96-364, 94 Stat. 1295. 37 The statutory language evinces an unmistakable congressional intention that obligatory payments shall be made, except when those payments are inconsistent with law. It is upon the construction of the phrase, "inconsistent with law," that the application of § 306(a), and the outcome of this case, obviously depend. The Court construes cases decided before the enactment of § 306(a) as suggesting that courts would not enforce collectively bargained payment obligations tainted by "consequential" illegality—payments that would "lead to" situations condemned by law, or that would allow a party to "reap the fruits" of illegal collective-bargaining provisions. Ante, at 81-83. Thus Kelly v. Kosuga, supra, is read to require that an illegality defense should be entertained when "its rejection would be to enforce conduct that the antitrust laws forbid." Ante, at 82. In the Court's view, § 306(a) constitutes no more than a statutory endorsement of these earlier cases, calling for a broad construction of the "inconsistent with law" phrase that would comport with those cases. 38 The Court's view is plausible only if the legislative history of § 306(a) is ignored. That history demonstrates beyond dispute that Congress was deeply concerned about the pre-1980 financial instability of employee benefit plans, and that this undesirable state of affairs was largely attributed to delinquent contributions by employers to those plans. The legislative history also demonstrates that Congress expressly intended § 306(a) to simplify and expedite plan trustees' suits to recover contractually required but delinquent employers' contributions, and that Congress chose to do so by, inter alia, substantially narrowing the scope of illegality defenses available to employers sued by plan trustees for delinquent contributions. With the benefit of the legislative history, it is apparent that § 306(a) was designed to allow an employer to be relieved of a plan contribution obligation only when the payment at issue is inherently illegal—for example, when the payment is in the nature of a bribe. In sum, illegality defenses, once arguably available whenever the payment in question could be connected with illegal activities or results, are now meant by Congress to be available only when the payment in question itself constitutes an illegal act. An examination of the legislative history of § 306(a) makes this narrowing intention crystal clear. II 39 The Court construes § 306(a) as merely declaratory of pre-existing case law. This construction implicitly assumes that Congress was on the whole satisfied with the pre-1980 condition of employee benefit plan funds. But that assumption is clearly erroneous. Congress was seriously troubled by a perception that employee benefit plans were highly vulnerable to financial instability,2 and it identified employers' delinquent contributions as a principal cause of that vulnerability. The Senate Committee on Labor and Human Resources concluded: 40 "Recourse available under current law for collecting delinquent contributions is insufficient and unnecessarily cumbersome and costly. Some simple collection actions brought by plan trustees have been converted into lengthy, costly and complex litigation concerning claims and defenses unrelated to the employer's promise and the plans' entitlement to the contributions. This should not be the case. Federal pension law must permit trustees of plans to recover delinquent contributions efficaciously. Sound national pension policy demands that employers who enter into agreements providing for pension contributions not be permitted to repudiate their pension promises." Senate Committee on Labor and Human Resources, 96th Cong., 2d Sess., 44 (Comm. Print 1980) (emphasis added).3 41 Thus Congress' paramount concern in enacting § 306(a) was to expedite and simplify the collection of delinquent contributions by plan trustees—in other words, to expedite and simplify the very kind of suit brought by respondents in the present case. To solve this problem, Congress decided, among other things, to narrow the legal defenses available to employers sued by plan trustees seeking to recover delinquent plan contributions. The comments of the sponsors of § 306(a) in both the Senate and the House bear out this interpretation. 42 In the House, Representative Thompson stated that "Federal pension law must permit trustees of plans to recover delinquent contributions efficaciously, and without regard to issues which might arise under labor-management relations law—other than 29 U.S.C. 186." 126 Cong.Rec. 23039 (1980) (emphasis added). Title 29 U.S.C. § 186, entitled "Restrictions on financial transactions," essentially prohibits an employer from paying bribes to his employees, their representatives, or their union.4 In sum, the comments of Representative Thompson evince a congressional intention that employers sued by plan trustees should be able to interpose an illegality defense only if the claimed illegality resided in the payment itself. 43 In the Senate, Senator Williams stressed the same theme: 44 "It is essential to the financial health of multiemployer plans that they and their actuaries be able to rely on an employer's contribution promises. [P]lan participants for whom the employer promises to make pension contributions to the plan in exchange for their labor are entitled to rely on their employer's promises. The bill clarifies the law in this regard by providing a direct ERISA cause of action against a delinquent employer without regard to extraneous claims or defenses." 126 Cong.Rec., at 20180 (emphasis added). 45 Senator Williams later restated his view of the defenses available to an employer under § 306(a), and implicitly defined his understanding of the term, "extraneous," by using precisely the same words as Representative Thompson had. Id., at 23288. 46 The sponsors of § 306(a) thus intended to cut off all illegality defenses that an employer might previously have interposed against a plan trustee, except those that claimed an illegality falling within the prohibition of 29 U.S.C. § 186. Congress perceived that a plan trustee is merely a third-party beneficiary of the collective-bargaining agreement reached by an employer and its employees. Such a trustee does not take part in the negotiations that give rise to the employer's contribution obligation. Nor does that trustee have any influence over the performance of other aspects of the collective-bargaining agreement, which are—as § 306(a)'s sponsors put it—"extraneous" or "unrelated to" the employer's promise to contribute to the plan. From the trustee's point of view, the employer's promise to make contributions to the designated plan is distinct and severable from all the other clauses of the collective-bargaining agreement, and failure of the agreement in any other respect is wholly irrelevant to the employer's contribution obligation. In order to achieve its goal of expediting and simplifying delinquent-contribution suits brought by plan trustees, Congress through § 306(a) essentially adopted the trustee's point of view on this issue. To ensure the full funding of employee benefit plans, Congress provided that when an employer is sued for plan contributions due and owing under a collective-bargaining agreement, the only defenses that will be permitted are those, arising under 29 U.S.C. § 186, involving a claim of illegality inherent in the payment itself. III 47 The Court ignores this legislative prescription, thereby rendering § 306(a) a nullity and frustrating Congress' desire to protect the economic integrity of the retirement, health, and unemployment plans upon which so many working people rely. The majority devotes little time or effort to its analysis of § 306(a), and its conclusion that that provision was intended merely to be declaratory of pre-existing law conflicts with the legislative history of § 306(a) in significant respects. 48 The Court does not explain why the modest, declaratory intention that it attributes to Congress is nowhere expressed in the legislative history of § 306(a). Nor does the Court even begin to reconcile its view of the limited purpose of § 306(a) with Congress' manifest concern for the financial vulnerability of employee benefit plans, or with Congress' express desire to simplify and expedite suits brought by plan trustees. The Court's position apparently is that Congress expected a mere statutory endorsement of existing case law to remedy the serious problems to which the 1980 Amendments were explicitly addressed. But simply to state this position is to expose its incredibility. The very fact that Congress perceived difficulties in the status quo, and sought to remedy them with § 306(a), demonstrates that that provision was not intended merely to express satisfaction with existing law, but rather was designed to narrow substantially the scope of defenses available to employers. 49 This conclusion naturally leads to, and in turn explains, Senator Williams' and Representative Thompson's explicit limitation of the defenses available under the new provision to those arising under 29 U.S.C. § 186. The Court, however, disregards these explicit limiting statements on the ground that "repeals by implication are disfavored," and that therefore "the intention of the legislature to repeal must be clear and manifest." The Court's reasoning is not even superficially persuasive. It is obvious that the Sherman Act is not "repealed" by § 306(a). The new provision merely channels the availability of the antitrust laws into employers' suits for declaratory and injunctive relief or for damages, the remedies normally afforded by those laws. See Huge v. Long's Hauling Co., Inc., 590 F.2d 457, 465 (CA3 1978) (concurring opinion). And—with respect to § 8(e) of the National Labor Relations Act—even if § 306(a) is construed as a partial repealer, the record before us presents plenty of "clear and manifest" evidence that Congress intended to effect such a repeal: if the Court would only address that evidence. There is Congress' express dissatisfaction with the current state of affairs respecting employers' contributions to employee benefit plans; there is Congress' express intention to simplify and expedite trustees' suits to recover contractually required but delinquent employers' contributions; and there is explicit legislative history, offered by the sponsors of the legislation, disclosing the limiting device—a cross-reference to 29 U.S.C. § 186—actually chosen by Congress in order to effect its stated purpose. By demanding more evidence than this, the Court simply imposes its own view of the wisdom of § 306(a) upon Congress and upon respondents, in the guise of judicial restraint. IV 50 The legislative history of § 306(a) makes it plain that the judgment of the Court of Appeals below, affirming the District Court's rejection of the illegality defenses proffered by petitioner Kaiser, should be affirmed by this Court. Kaiser's defenses do not attack the legality of the delinquent plan contributions themselves. Indeed, Kaiser does not even attempt to argue that the overdue payments sought by respondent trustees are inherently illegal. Rather, Kaiser contends that the making of those payments would "lead to" an illegal restraint of trade, or would allow the trustees to "reap the fruits" of an illegal "hot cargo" clause. Whatever the merits of these contentions of consequential illegality, § 306(a) renders them quite irrelevant to Kaiser's obligation to make its promised contributions to the designated employee benefit plan funds. That was the very purpose of § 306(a). 51 This conclusion does not impair Kaiser's rights vis-a-vis the UMW, nor does it undercut the important national policies embodied in the Sherman Act and § 8(e) of the National Labor Relations Act. Kaiser can easily transform both of its illegality claims into causes of action brought directly against the union. "The employer may still have its claims adjudicated by bringing, in the proper forum, a timely suit against the union for rescission of the contract, antitrust damages, or a declaration that an unfair labor practice has been committed . . . ." Huge, supra, at 465 (concurring opinion).5 Section 306(a) simply distinguishes Kaiser's rights against the union from its rights against respondents. In its effort to assure financial stability to employee benefit plans, § 306(a) prescribes the insulation of plan trustees—such as respondents—from the potentially never-ending disputes between labor and management. 52 Because I believe that § 306(a) of the 1980 Amendments requires affirmance of the judgment of the Court of Appeals, I dissent. 1 Kaiser has been a UMW signatory since the 1940's. The purchased-coal clause was first included in the 1964 Agreement, although the UMW agreements left steel companies such as Kaiser free to purchase non-UMW coal for use in steel production until 1971 without penalty. 2 The 1971 purchased-coal clause and its predecessors have been subject to litigation on the grounds that the clause is an illegal "hot cargo" agreement under § 8(e) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(e), see, e.g., Riverton Coal Co. v. UMW, 453 F.2d 1035 (CA6), cert. denied, 407 U.S. 915, 92 S.Ct. 2439, 32 L.Ed.2d 690 (1972), and that it constitutes a group boycott in violation of the antitrust laws. See, e.g., Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); South-East Coal Co. v. Consolidation Coal Co., 434 F.2d 767 (CA6 1970), cert. denied, 402 U.S. 983, 91 S.Ct. 1662, 29 L.Ed.2d 149 (1971). 3 If Kaiser had purchased its mid-volatile coal requirements from a UMW producer, it would not be required to make any payments under the purchased-coal clause. The producer of mid-volatile coal would increase its contributions to the trust funds based on the amount of coal mined and the number of hours worked by employees, but in turn the trust funds' obligations to UMW members would increase. 4 See also Hurd v. Hodge, 334 U.S. 24, 34-35, 68 S.Ct. 847, 852-853, 92 L.Ed. 1187 (1948); D. R. Wilder Manufacturing Co. v. Corn Products Refining Co., 236 U.S. 165, 177, 35 S.Ct. 398, 402, 59 L.Ed. 520 (1915); Bement v. National Harrow Co., 186 U.S. 70, 88, 22 S.Ct. 747, 754, 46 L.Ed. 1058 (1902); Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 548-549, 22 S.Ct. 431, 435, 46 L.Ed. 679 (1902). 5 In order to sell coal to Kaiser, a non-UMW producer must lower its price such that when added to the amount Kaiser must pay under the purchased-coal clause, the price is still competitive with those charged by UMW producers. 6 The contention is that since the contract has expired, enforcing the promise to contribute will not bring about any of the evils that the antitrust or labor laws are designed to prevent. But if a promise is illegal at its inception and cannot be enforced during the term of the contract, it does not spring to life and become enforceable when the contract expires. If penalizing Kaiser for purchasing coal from producers without contracts with the UMW is illegal, it is not less so if the penalty is extracted after the termination of the promise. The suit is still a suit on a presumptively illegal undertaking. If a promisee need only wait until a contract expires to enforce an illegal provision, the defense of illegality would obviously be ephemeral. Cases such as Continental Wall Paper Co. v. Louis Voight & Sons Co., 212 U.S. 227, 29 S.Ct. 280, 53 L.Ed. 486 (1909), and McMullen v. Hoffman, 174 U.S. 639, 19 S.Ct. 839, 43 L.Ed. 1117 (1899), confound such a rule. And if it be suggested that Kaiser should not have waited so long to assert its defense, the Court has held that "rules of estoppel will not be permitted to thwart the purposes of statutes of the United States." Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 176, 63 S.Ct. 172, 174, 87 L.Ed. 165 (1942). 7 Refusing to enforce a promise that is illegal under the antitrust or labor laws is not providing an additional remedy contrary to the will of Congress. A defendant proffering the defense seeks only to be relieved of an illegal obligation and does not ask any affirmative remedy based on the antitrust or labor laws. "[A]ny one sued upon a contract may set up as a defence that it is a violation of the act of Congress, and if found to be so, that fact will constitute a good defence to the action . . . . The act . . . gives to any person injured in his business or property the right to sue, but that does not prevent a private individual when sued upon a contract which is void as in violation of the act from setting it up as a defence, and we think when proved it is a valid defence to any claim made under a contract thus denounced as illegal." Bement v. National Harrow Co., 186 U.S., at 88, 22 S.Ct., at 754. As is evident from the text, Kelly v. Kosuga did not hold that the promisor may be forced to perform an illegal contract because he has another remedy that would make him whole. The case did hold that the promisor may not avoid performing a perfectly legal promise because he has also made a separate, illegal undertaking. In doing so, Kosuga conforms to a common-law exception to the rule that courts will not enforce illegal contracts. See 6A A. Corbin, Contracts §§ 1518-1531 (1962 ed. and Supp. 1964); Comment, 27 U.Chi.L.Rev. 758, and n. 2 (1959-1960). 8 As the Court of Appeals recognized, "third-party beneficiaries, like the Trustees here, are subject to the contract defenses of nonperforming promisors." 206 U.S.App.D.C. 334, 344, 642 F.2d 1302, 1312 (1980). In this respect, pension fund trustees have no special status which exempts them from the general rule that courts do not enforce illegal contracts. Only Congress could create such an exemption and, as discussed in Part IV, it has not done so. 9 The dissent rests entirely on § 306(a). It does not suggest that absent § 306(a), the purchased-coal clause would not be subject to the defense that its enforcement is forbidden by both the antitrust and labor laws. 10 Senator Williams was Chairman of the Senate Committee on Labor and Human Resources and floor manager of S.1076, the Senate counterpart of H.R. 3904, which became the Multiemployer Pension Plan Amendments Act of 1980. Similarly, Representative Thompson was Chairman of the House Education and Labor Committee and floor manager of H.R. 3904. 11 126 Cong.Rec. 23039 (1980) (remarks of Rep. Thompson); id., at 23288 (remarks of Sen. Williams). 12 Ibid. (1980) (remarks of Sen. Williams); id., at 23039 (remarks of Rep. Thompson); id., at 20180 (colloquy between Sen. Williams and Sen. Matsunaga). See also 1980 Senate Labor Committee Print, at 44. 13 According to the dissent, Congress intended to permit a union to extract a promise from an employer that would be illegal under the antitrust and labor laws as long as the promise is to pay money to pension fund trustees. Under this view, the defense of illegality would be unavailable during the life of the contract; it would be of no avail to the employer to secure a declaratory judgment that its promise violated federal statutes. The promise would still be enforceable, the effect being that the antitrust and labor laws would be suspended for the life of the contract. The dissent concedes that § 306(a) itself does not support this result. It instead relies on scraps of legislative history to work its partial repeal of the antitrust and labor laws. We are unconvinced that Congress intended any such result. It should also be pointed out that Kaiser paid all sums that were anticipated in calculating the needs of the trust funds. The purchased-coal clause was not taken into account in providing trust-fund revenues. We are unpersuaded that Congress intended to give pension fund trustees the benefit of illegal bargains that were not, and should not have been, relied upon to ensure the solvency of the trust funds. 14 Because attorney's fees are normally awarded only to prevailing parties, the award of attorney's fees to respondents is also reversed. The Court of Appeals held that the District Court had jurisdiction over this action pursuant to § 502 of ERISA and did not abuse its discretion in awarding attorney's fees under § 502(g). That section permits a court to "allow a reasonable attorney's fee and costs of action to either party" in an action brought under § 502. Petitioners contend that this is not a suit to enforce ERISA, it cannot be brought under § 502, and therefore there is no authority for an award of attorney's fees. It is unnecessary to reach this issue. 1 94 Stat. 1295. The Court expresses doubt that § 306(a) is applicable to this case. Ante, at 87. But there is no basis for such doubt. Ever since United States v. Schooner Peggy, 1 Cranch 103, 109, 2 L.Ed. 49 (1801), we have recognized that "the court must decide according to existing laws." Recently, in Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974), we reaffirmed our adherence to that rule, holding that an appellate court is bound to "apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Because there is no dispute that § 306(a) is now "in effect," we must apply that provision here, unless Congress intended to the contrary or unless doing so would be manifestly unjust. There is absolutely nothing to indicate any legislative intention that § 306(a) was not to be applied to cases on appeal at the time of its enactment. Indeed, § 108(c)(1) of the 1980 Amendments, 94 Stat. 1267, made § 306(a) effective as of the date of enactment, indicating that Congress intended that provision to become applicable as soon as possible. Moreover, the legislative history of the Amendments suggests a congressional intention that § 306(a) would apply to pending appeals. The sponsors of the Amendments in both the Senate and the House, in explaining the intended effect of § 306(a), specifically disapproved of certain holdings that had been reached by lower federal courts and that were on appeal while the bill was pending. See 126 Cong.Rec. 23288 (1980) (remarks of Sen. Williams); id., at 23039 (remarks of Rep. Thompson). Nor would application of § 306(a) to the present case work any "manifest injustice" upon Kaiser, in the sense in which that term was used in Bradley, supra. The sort of "injustice" discussed in Bradley is that which "stems from the possibility that new and unanticipated obligations may be imposed upon a party without notice or an opportunity to be heard." Bradley, supra, 416 U.S. at 720, 94 S.Ct. at 2021. Application of § 306(a) would hardly impose any "new and unanticipated obligations" upon Kaiser. On the contrary, application of § 306(a) could at most require Kaiser to make payments that it knew of, and indeed agreed to make, back in 1974, as part of a collective-bargaining agreement that has been fully performed by the other side. In my view, it would be a manifest injustice to respondents—and, more importantly, to Kaiser's UMW employees who are the intended beneficiaries of the purchased-coal clause—if this Court failed to apply § 306(a) to the case before it. 2 The Senate Committee on Labor and Human Resources explained these concerns as follows: "Delinquencies of employers in making required contributions are a serious problem for most multiemployer plans. Failure of employers to make promised contributions in a timely fashion imposes a variety of costs on plans. While contributions remain unpaid, the plan loses the benefit of investment income that could have been earned if the past due amounts had been received and invested on time. Moreover, additional administrative costs are incurred in detecting and collecting delinquencies. Attorneys fees and other legal costs arise in connection with collection efforts. "These costs detract from the ability of plans to formulate or meet funding standards and adversely affect the financial health of plans. Participants and beneficiaries of plans as well as employers who honor their obligation to contribute in a timely fashion bear the heavy cost of delinquencies in the form of lower benefits and higher contribution rates. Moreover, in the context of this legislation, uncollected delinquencies can add to the unfunded liability of the plan and thereby increase the potential withdrawal liability for all employers." Senate Committee on Labor and Human Resources, 96th Cong., 2d Sess., 43-44 (unnumbered Comm. Print 1980) (emphasis added). 3 The Committee went on to stress that: "The public policy of this legislation to foster the preservation of the private multiemployer plan system mandates that provision be made to discourage delinquencies and simplify delinquency collection. The bill imposes a Federal statutory duty to contribute on employers that are already contractually obligated to make contributions to multiemployer plans. . . . The intent of this section is to promote the prompt payment of contributions and assist plans in recovering the costs incurred in connection with delinquencies." Ibid. 4 Section 186 reads in pertinent part: "(a) It shall be unlawful for any employer or association of employers or any person who acts as a labor relations expert, adviser, or consultant to an employer or who acts in the interest of an employer to pay, lend, or deliver, any money or other thing of value— "(1) to any representative of his employees . . .; or "(2) to any labor organization, or any officer or employee thereof, which represents, seeks to represent, or would admit to membership, any of the employees of such employer . . .; or "(3) to any employee or group or committee of employees of such employer . . . in excess of their normal compensation for the purpose of causing such employee or group or committee directly or indirectly to influence any other employees in the exercise of the right to organize and bargain collectively through representatives of their own choosing; or "(4) to any officer or employee of a labor organization . . . with intent to influence him in respect to any of his actions, decisions, or duties as a representative of employees or as such officer or employee of such labor organization." 5 The Huge decision was specifically endorsed by the sponsors of § 306(a) in both the Senate and the House. See 126 Cong.Rec. 23288 (1980) (remarks of Sen. Williams); id., at 23039 (remarks of Rep. Thompson).

67

454 U.S. 555 102 S.Ct. 805 70 L.Ed.2d 768 UNITED STATES, Petitioner,v.Joseph J. CLARK, et al. No. 80-1121. Argued Nov. 3, 1981. Decided Jan. 12, 1982. Syllabus There are two principal pay systems for federal employees: (1) The General Schedule (GS), which applies to "white-collar" employees and which is divided into numbered pay grades and subdivided into rates of pay or "steps" within each grade, with the salary for each "step" uniform nationwide; and (2) the prevailing wage system (WS), which primarily applies to "blue-collar" employees specifically excluded from GS, and which is also divided into grades and subdivided into "steps," with the rates of pay for each "step" based upon prevailing wage rates for comparable work in local areas. Salary treatment for employees shifted or hired into the GS system is governed by 5 U.S.C. § 5334 and implementing regulations. An employee's salary after promotion is determined by reference either to the "highest previous rate" rule under § 5334(a) and the governing regulation or to the "two-step increase" rule under § 5334(b), which provides for such an increase when an employee is promoted to a position in a higher "grade." Title 5 U.S.C. § 5331 assigns the word "grade" the meaning given by § 5102(a)(5), which in turn defines the word as those positions sufficiently similar to warrant their inclusion within one range of rates of basic pay "in the General Schedule." Respondents, after being promoted from WS to GS positions, were administratively held to be entitled to a salary increase determined by the "highest previous rate" rule, which gave them a smaller increase than they would have received under the "two-step increase" rule. They then filed an action in the Court of Claims, contending that they were entitled to a two-step increase in pay pursuant to § 5334(b). The Court of Claims upheld their claim and accordingly invalidated a regulation which construed § 5334(b) as limited to transfers or promotions within the GS. Held : Section 5334(b) does not apply to WS employees promoted to GS positions. Pp. 560-567. (a) Giving § 5334(b) its plain meaning, when an employee is promoted to a position in a higher grade "in the General Schedule," he is entitled to pay which exceeds by two step increases his pay in the grade "in the General Schedule" from which he was promoted. Absent statutory language indicating that Congress intended to include employees promoted from WS to GS within § 5334(b)'s two-step requirement, the statute reveals an intent to apply such requirement only to promotions of employees already within the GS system. Pp. 560-561. (b) Although the legislative history does not expressly indicate that Congress intended to limit § 5334(b) and its predecessor to GS employees, the history does provide ample indication that such was Congress' intent. Pp. 561-565. (c) Although not determinative, the construction of a statute by those charged with its administration is entitled to great deference, particularly when that interpretation has been followed consistently over a long period of time. Here, the agency responsible for proposing and administering § 5334(b) has consistently construed it to apply only to promotions within the GS. Pp. 565-566. 220 Ct.Cl. 278, 599 F.2d 411, reversed. Alan I. Horowitz, Washington, D. C., for petitioner. John I. Heise, Jr., Silver Spring, Md., for respondents. Justice O'CONNOR delivered the opinion of the Court. 1 The issue in this case is whether 5 U.S.C. § 5334(b), which requires a two-step pay increase for federal employees "promoted . . . to a position in a higher grade," applies to prevailing wage rate employees promoted to General Schedule positions. We hold that it does not apply, and reverse the judgment of the Court of Claims. 2 * This case involves the relationship between the two principal pay systems for federal employees and the pay treatment to which an employee moving from one system to another is entitled. Both systems are governed by Title 5, United States Code. 3 One of the pay systems, the General Schedule (GS), 5 U.S.C. § 5331 et seq., (1976 ed. and Supp.V), applies to federal "white-collar" employees. See R. Vaughn, Principles of Civil Service Law § 6.2(a), at p. 6-4 (1976) (hereinafter Vaughn). The GS is divided into 18 numbered grades; as the number of the grade increases, so do pay and responsibilities. 5 U.S.C. §§ 5104 and 5332 (1976 ed. and Supp.V). The grades are subdivided into rates of pay or "steps." § 5332. The salary for each step of each grade in the GS is uniform nationwide.1 4 The second principal pay system is the prevailing rate wage system (WS), 5 U.S.C. § 5341 et seq., (1976 ed. and Supp.V), which primarily applies to those federal "blue-collar" employees specifically excluded from the GS. See 5 U.S.C. §§ 5102(b), (c)(7), 5331, and 5342(a)(2)(A); Vaughn § 6.2(b), p. 6-17. The WS also is divided into grades and subdivided into "steps." The rate of pay for each step within each grade is based upon wage surveys of prevailing rates for comparable work in local wage areas. 5 U.S.C. § 5343 (1976 ed. and Supp.V); Office of Personnel Management, Federal Personnel Manual, Supp. 532-1, 56 (Apr. 14, 1980) (hereinafter FPM). Pay rates for positions within the WS thus vary from one locale to another. 5 Salary treatment for GS employees who change their employment status and employees shifted or hired into the GS system is governed by 5 U.S.C. § 5334 (1976 ed. and Supp.V) and regulations promulgated pursuant thereto. Under the statute, an employee's salary after promotion is determined by reference either to the "highest previous rate" rule2 or to the "two-step increase" rule.3 6 Prior to July 1973, all six respondents worked as federal civilian employees for the Supervisor of Shipbuilding, Department of the Navy. In those positions, they were paid pursuant to the WS. Between July 1973 and October 1974, all were promoted to positions covered by the GS.4 After his promotion, Libretto learned that the other respondents received a salary increase equivalent to a two-step pay increase on their appointment to the GS positions.5 Since Libretto's increase was based upon the "highest previous rate" rule and was much smaller, he filed a claim with the Department of the Navy. As a result, the Navy reexamined the salary treatment afforded respondents. Concluding the salaries of all should have been determined by applying the "highest previous rate" rule, the Navy denied Libretto's claim and notified the other respondents their salaries would be reduced accordingly. 7 Respondents unsuccessfully pursued their administrative remedies and then filed this action in the Court of Claims under the Tucker Act, 28 U.S.C. § 1491, and the Back Pay Act of 1966, 5 U.S.C. § 5596. Respondents contended they were entitled to a two-step increase in pay pursuant to 5 U.S.C. § 5334(b) (1976 ed., Supp.V). The Government opposed the claims on the ground that § 5334(b) applies only to promotions within the GS and not to shifts or promotions between the WS and the GS, which are governed by § 5334(a). 8 The Court of Claims, reasoning that respondents had been "promoted" within the meaning of 5 CFR § 531.202(h)(2) (1969),6 determined they were entitled to a two-step increase under § 5334(b). Accordingly, the court invalidated, as inconsistent with the statute, 5 CFR § 531.204(a) (1969), which construed § 5334(b) as limited to transfers or promotions within the GS. 220 Ct.Cl. 278, 599 F.2d 411 (1979). 9 After remand, the parties stipulated to the amount of respondents' recovery, and the court entered final judgment on August 8, 1980. We granted the Government's petition for writ of certiorari to the United States Court of Claims. 450 U.S. 993, 101 S.Ct. 1693, 68 L.Ed.2d 192 (1981). We have jurisdiction based upon 28 U.S.C. § 1255. II 10 We look first to the language and organization of the statutes governing General Schedule pay rates and the prevailing rate wage system. If the statutory language is clear, it is ordinarily conclusive. See Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). 11 Section 5334 is part of subchapter III, chapter 53 of Title 5, entitled "General Schedule Pay Rates." Subsection 5334(a) describes the general conditions, including promotions, under which a GS employee is entitled to a change in basic pay. It directs simply that the rate is "governed by regulations prescribed by the [Civil Service Commission]. . . ." Following that direction, the Civil Service Commission promulgated the "highest previous rate" rule.7 12 In subsection 5334(b), on the other hand, Congress restricted the Commission's discretion in one limited situation: 13 "An employee who is promoted or transferred to a position in a higher grade is entitled to basic pay at the lowest rate of the higher grade which exceeds his existing rate of basic pay by not less than two-step increases of the grade from which he is promoted or transferred." 14 For purposes of subchapter III, 5 U.S.C. § 5331 assigns the word "grade" the meaning given the term by 5 U.S.C. § 5102(a)(5). That section, in turn, defines a grade as those positions sufficiently similar to warrant their inclusion within one range of rates of basic pay "in the General Schedule." Giving § 5334(b) its plain meaning, then, when an employee is promoted to a position in a higher grade "in the General Schedule," he is entitled to pay which exceeds by two-step increases his pay in the grade "in the General Schedule" from which he was promoted. 15 The Wage System, on the other hand, is governed by subchapter IV of chapter 53, Title 5. No express statutory provision in subchapter IV defines how an employee's salary should be set when a WS employee is promoted to a GS position. Thus, the only applicable statutory provisions are those found in subchapter III and its accompanying regulations, which specifically limit the two-step increase to promotions within the GS. Nothing in the statutory language indicates Congress intended to include employees promoted from WS to GS within the two-step requirement of § 5334(b). Absent such language, the statute and the accompanying regulations reveal a congressional intent to apply the two-step increase provision of § 5334(b) only to promotions or transfers of employees already within the GS system. III 16 Although the language of the statute is clear, any lingering doubt as to its proper construction may be resolved by examining the legislative history of the statute and by according due deference to the longstanding interpretation given the statute by the agencies charged with its interpretation. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974). The legislative history of § 5334(b) reinforces the apparent intent of the statutory language. The predecessor to § 5334(b) was § 802(b) of the Classification Act of 1949, 63 Stat. 954, 5 U.S.C. § 1071 et seq. (1946 ed. and Supp.IV) (1949 Act).8 Through the 1949 Act, Congress completely revised the Classification Act of 1923, Pub.L. 516, 42 Stat. 1488, 5 U.S.C. § 661 et seq. (1925-1926 ed.). Under the latter statute, an employee who was at the top step of his grade could receive little or no salary increase upon promotion to a higher grade. That inequity resulted because the salary for the higher steps in one grade could equal or exceed the salary for the lower steps in the next higher grade. Congress' 1949 revision plainly undertook to correct this problem: the 1949 Act numbered among its stated purposes the need "to permit the solution of certain troublesome problems or to avoid unintentional pay inequities in the conduct of various personnel transactions." S.Rep.No.847, 81st Cong., 1st Sess., 4 (1949). Congress, moreover, understood the precise nature of the salary overlap problem. The Committee Reports which accompanied the proposed revisions explained: 17 "At present, a promoted employee receives no immediate increase if he is already receiving a rate in the lower grade that also occurs in the higher grade. If he is receiving a rate in the lower grade that falls between two rates of the higher grade, he is promoted at the higher of these two rates. 18 "In too many cases, accordingly, an employee who is promoted to greater responsibilities or more difficult duties receives no immediate increase in pay. This is not in accord with the commonly accepted principle that a promotion in pay should [concurrently] accompany a promotion in duties and responsibilities. 19 "Subsection (b) of section 802 corrects this situation." Id., at 38; H.R.Rep.No.1264, 81st Cong., 1st Sess., 12-13 (1949), U.S.Code Cong.Serv. 1949, p. 2363. 20 Examination of the history of the prevailing wage system dispels any notion that Congress intended the corrective measure of § 802(b) to apply to movement between the prevailing wage and Classification Act systems. In 1949, each federal agency had its own pay system for blue-collar workers. As a result, employees holding the same federal position in the same locale often received different wages if they worked for different agencies. In addition, each agency had its own job grading system for prevailing wage employees, which resulted in widely varying numbers of grades and wage steps.9 Nothing in the legislative history suggests that Congress was even aware of—much less was attempting to adjust—the varied results that might occur if a prevailing wage worker moved into a Classification Act position. The 1949 legislative history suggests only that Congress was concerned with inequities that might occur through application of the Classification Act system to movement within that system. 21 Moreover, in 1972, approximately one year before respondents' promotions, Congress undertook a comprehensive examination of the prevailing wage statutes and amended existing laws to declare congressional policy for the payment of prevailing wage employees. See S.Rep.No.92-791, p. 1 (1972), U.S.Code Cong. & Admin.News 1972, pp. 2980, 2982. Congress' stated purpose was to codify existing law. Ibid. As part of the 1972 amendments, Congress for the first time directed that a grading system be established and maintained for prevailing wage employees.10 5 U.S.C. § 5346 (1976 ed. and Supp.V). Even then, Congress made no effort to correlate the WS grades with those used in the GS. By that time, the agency practice of specifically limiting § 5334(b) and its predecessor to transfers between Classification Act, or GS, positions had been followed for nearly 25 years.11 Congress' failure to correct that practice, if it did not correspond with congressional intent, at the very time Congress was revamping the laws applicable to pay for prevailing wage positions provides further evidence of its intent that § 802(b) and, later, § 5334(b) apply only to GS employees. See United States v. Bergh, 352 U.S. 40, 77 S.Ct. 106, 1 L.Ed.2d 102 (1956). 22 The absence of any indication that Congress intended § 5334(b) to apply to promotions into the GS from the WS is hardly surprising, since the two systems have no necessary or obvious relationship. First, because the WS involves an entirely separate pay structure based on prevailing rates in local wage areas, no necessary overlap occurs between WS and GS salaries. In fact, since WS rates vary by locale, an employee changing from a WS position to a GS position could receive a greater salary, a lesser salary, or the same salary as another employee making the identical change in another part of the country. Moreover, although by definition a change to a higher grade within the GS system involves a change to a position with greater responsibility (see 5 U.S.C. § 5102(a)(5) (1976 ed., Supp.V)), no similar relationship necessarily exists between a WS grade and a GS grade.12 23 Although the legislative history does not expressly indicate that Congress intended to limit § 5334(b) and its predecessor to GS employees, the history provides ample indication that such was Congress' intent. Moreover, the reasons for enactment of the provision are consistent with such a limitation. IV 24 Although not determinative, the construction of a statute by by those charged with its administration is entitled to great deference, particularly when that interpretation has been followed consistently over a long period of time. See Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 97 S.Ct. 926, 51 L.Ed.2d 124 (1977). In this instance, the agency responsible for proposing and administering § 5334(b) has consistently construed it to apply only to promotions within the GS. 25 Section 802(b) of the 1949 Act was drafted and submitted to the Congress by the Civil Service Commission.13 Soon after its enactment, the Civil Service Commission promulgated regulations interpreting the section. The first regulations guaranteed a pay increase to one promoted "to a higher grade between Classification Act [GS] positions. . . ." 15 Fed.Reg. 7868 (1950), 5 CFR § 25.104(a) (Supp.1951).14 In contrast, an employee promoted or transferred from another pay system into the Classification Act system was subject to the "highest previous rate" rule. 15 Fed.Reg. 1235 (1950), 5 CFR § 25.103(b) (Supp.1951). Subsequent versions of the regulations continued to apply the automatic salary increase of § 802(b) and, later, of § 5334(b), only to promotions or transfers within the Classification Act, or GS, system.15 In fact, the regulation in effect when respondents were promoted expressly provided that the two-step pay increase provision of § 5334(b) applied "only (i) to a transfer from one General Schedule position to a higher General Schedule position, and (ii) to a promotion from one General Schedule grade to a higher General Schedule grade." 33 Fed.Reg. 12450 (1968), 5 CFR § 531.204(a)(1) (1969).16 V 26 The language of the statute, the entire statutory scheme, the legislative history, and consistent administrative interpretation all demonstrate the soundness of the Government's position that § 5334(b) is inapplicable to promotions from the Wage System to the General Schedule. 27 The judgment of the Court of Claims is reversed. 28 It is so ordered. 1 The Federal Pay Comparability Act of 1970, 5 U.S.C. § 5301 et seq., (1976 ed. and Supp.V), defines the principles applied to determine GS salaries. 2 The "highest previous rate" rule derives from 5 U.S.C. § 5334(a), (1976 ed., Supp.V), which provides in part: "The rate of basic pay to which an employee is entitled is governed by regulations prescribed by the Office of Personnel Management [formerly the Civil Service Commission] in conformity with this subchapter and chapter 51 of this title when— (1) he is transferred from a position in the legislative, judicial, or executive branch to which this subchapter does not apply; * * * * * (6) his employment status is otherwise changed; or (7) his position is changed from one grade to another grade." At the time of respondents' promotions, 33 Fed.Reg. 12450 (1968), 5 CFR § 531.203(c) (1969), one of the regulations prescribed by authority of § 5334(a), provided in part: "Subject to § 531.204 . . ., when an employee is reemployed, transferred, reassigned, promoted, or demoted, the agency may pay him at any rate of his grade which does not exceed his highest previous rate; however, if his highest previous rate falls between two rates of his grade, the agency may pay him at the higher rate." 3 The "two-step increase" rule is codified in 5 U.S.C. § 5334(b), (1976 ed., Supp.V), which provides in pertinent part: "An employee who is promoted or transferred to a position in a higher grade is entitled to basic pay at the lowest rate of the higher grade which exceeds his existing rate of basic pay by not less than two step-increases of the grade from which he is promoted or transferred." At the time of respondents' promotions, 33 Fed.Reg. 12450 (1968), 5 CFR § 531.204(a)(1) (1969), the regulation interpreting § 5334(b), provided: "The requirements of section 5334(b) of title 5, United States Code, apply only (i) to a transfer from one General Schedule position to a higher General Schedule position, and (ii) to a promotion from one General Schedule grade to a higher General Schedule grade." 4 Respondents' changes of position were as follows: Clark, from WS ship surveyor (shipfitter) to GS quality assurance specialist; D'Aversa, from WS ship surveyor (pipefitter) to GS production controller; Libretto, from WS ship surveyor (machinist) to GS engineering technician; Proto, from WS ship surveyor (electrician) to GS production controller, and later to GS contract negotiator; Scialpi, from WS ship surveyor (shipfitter) to GS contract negotiator; and Wolfus, from WS ship surveyor (machinist) to GS contract negotiator. 5 The parties agree that Libretto's salary after promotion was determined by reference to the "highest previous rate" rule. Because his WS salary fell between two steps of his new GS grade, he was given the higher salary level of the new GS grade. The parties disagree as to the method used to determine the postpromotion salaries of the remaining respondents. Respondents allege they were simply given a two-step increase, pursuant to § 5334(b). The Government explains their GS salaries were originally determined by first applying the provision of subchapter S8-3d of the FPM, Supp. 532-1, Inst. 8 (Jan. 16, 1973), which stated that an employee promoted to a WS position is entitled to be paid at the lowest scheduled rate that exceeds his existing rate of pay by no less than a one-step increment of the category from which he was promoted. Once this adjustment had been made, the new GS salaries of these respondents were computed by applying the "highest previous rate" rule of 5 CFR § 531.203(c) (1969) to the adjusted rates of pay. Thus, each of these respondents was awarded two salary increases for a single change of position. If this method was utilized, the salary determinations were obviously erroneous because subchapter S8-3d and the "highest previous rate" rule of 5 CFR § 531.203(c) (1969) are not applicable to the same personnel action. Regardless of the method used, the effect was to give all respondents except Libretto the equivalent of a two-step increase. 6 At the time of respondents' promotions, 33 Fed.Reg. 12449 (1968), 5 CFR § 531.202(h) (1969), provided: " 'Promotion' means a change of an employee, while continuously employed, from: (1) One General Schedule grade to a higher General Schedule grade; or (2) A lower rate paid under authority other than subchapter III of chapter 53 of title 5, United States Code, to a higher rate within a General Schedule grade." 7 See 5 CFR § 531.203(c) (1969). The Civil Service Commission promulgated the initial regulation. In 1978, Congress substituted the Office of Personnel Management for the Civil Service Commission. 5 U.S.C. § 1101 et seq. (1976 ed., Supp.V). The terms of the regulation have remained consistent since 1950. See n. 15, infra. 8 In 1962, the Act was amended to provide a two-step rather than a one-step salary increase. 5 U.S.C. § 1132(b) (1958 ed., Supp.V). 9 See Staff Report, President's Panel on Federal Compensation 107 (Jan. 1976). 10 In 1965, President Johnson directed all executive agencies to coordinate their wage policies and practices under the leadership of the Chairman of the Civil Service Commission. See FPM, Supp. 532-1, App. A-1, B-1 (Nov. 16, 1965). As a result, the Coordinated Federal Wage System was developed. In 1972, Congress amended the prevailing wage statutes. The purpose of the 1972 amendments was to codify existing law and enact a system for all agencies to use for determining the prevailing wage rates. S.Rep.No.92-791, p. 1 (1972). As part of the 1972 amendments, Congress added 5 U.S.C. § 5346, which directed the Civil Service Commission to establish and maintain a job grading system for positions covered by subchapter IV. That was the first time Congress directed the maintenance of a uniform system for WS employees. 11 See Part IV, infra. 12 The two systems are simply independent. Unlike the 10 steps or rates of pay in most GS grades (see 5 U.S.C. § 5332 (1976 ed. and Supp.V)), the WS currently uses only 5 rates for each position (see 5 U.S.C. § 5343(c)(2) (1976 ed. and Supp.V)) and before 1972 used only 3 rates. See H.R.Rep.No.92-339, p. 6 (1971); S.Rep.No.92-791, p. 2 (1972). In addition, the range of pay in a GS grade is approximately 30 percent of the base rate, but the range in the WS is only approximately 16 percent. See 5 U.S.C. §§ 5332 (chart), 5343(e)(1)(A)-(E) (1976 ed. and Supp.V). Moreover, the periodic step increases in the WS occur considerably more quickly than in the GS. Compare 5 U.S.C. §§ 5335(a)(1)-(3) with 5 U.S.C. §§ 5343(e)(2)(A)-(C) (1976 ed. and Supp.V). As a result, the maximum rate of pay for a position is more often reached, and in a far shorter time, by a WS employee than by a GS employee. 13 See S.Rep.No.847, 81st Cong., 1st Sess., 1 (1949). 14 Congress specifically excluded prevailing rate positions from the Classification Act of 1949. 5 U.S.C. § 1082(7) (1946 ed., Supp.V). Those positions remain specifically excluded from the General Schedule. 5 U.S.C. §§ 5102(c)(7), 5331 (1976 ed. and Supp.V). 15 See, e.g., 15 Fed.Reg. 7868 (1950), 5 CFR § 25.104(a) (Supp.1951) (refers to "[a]n employee promoted, repromoted or transferred to a higher grade between Classification Act positions or grades"); 25 Fed.Reg. 7147 (1960), 5 CFR § 25.104(a) (1961) ("[t]he requirements of section 802(b) of the [Classification] Act apply in repromotion actions and in transfers involving promotions between Classification Act grades"); 28 Fed.Reg. 10948 (1963), 5 CFR § 531.204(a)(1) (1964) ("[t]he requirements of section 802(b) of the [A]ct, apply in a transfer involving a promotion between Classification Act grades"); 33 Fed.Reg. 12450 (1968), 5 CFR § 531.204(a) (1969) ("[t]he requirements of section 5334(b) of title 5, United States Code, apply only (i) to a transfer from one General Schedule position to a higher General Schedule position, and (ii) to a promotion from one General Schedule grade to a higher General Schedule grade"). 16 The General Accounting Office, authorized to settle and adjust "[a]ll claims and demands whatever . . . against [the Government]," 31 U.S.C. §§ 71, 72, has consistently determined that the "highest previous rate" rule, rather than the automatic step-increase provision, governs transfers or promotions from a WS position to a GS position. See, e.g., In re Nail, 59 Comp.Gen. 209 (1980); Letter Decision, 52 Comp.Gen. 695 (1973); Letter Decision, 52 Comp.Gen. 671 (1973); Letter Decision, 44 Comp.Gen. 518 (1965).

78

455 U.S. 16 102 S.Ct. 821 70 L.Ed.2d 792 UNITED STATES, Petitioner,v.VOGEL FERTILIZER COMPANY. No. 80-1251. Argued Nov. 3, 1981. Decided Jan. 13, 1982. Syllabus Section 1561(a) of the Internal Revenue Code of 1954 limits a "controlled group of corporations" to a single surtax exemption. Section 1563(a)(2) provides that a "controlled group of corporations" includes a "brother-sister controlled group," defined as "[t]wo or more corporations if 5 or fewer persons . . . own . . . stock possessing (A) at least 80 percent of the total combined voting power . . . or at least 80 percent of the total value . . . of each corporation, and (B) more than 50 percent of the total combined voting power . . . or more than 50 percent of the total value . . . of each corporation, taking into account the stock ownership of each such person only to the extent such stock ownership is identical with respect to each such corporation." An implementing Treasury Regulation interprets the statutory term "brother-sister controlled group" to mean two or more corporations if the same five or fewer persons own "singly or in combination" the two prescribed percentages of voting power or total value. One shareholder, Vogel, owned 77.49 percent of the outstanding stock of respondent Vogel Fertilizer Co. Another shareholder, Crain, owned the remaining 22.51 percent. Vogel also owned 87.5 percent of the voting power in Vogel Popcorn Co. and 90.66-93.42 percent of the value of its stock. Crain owned no stock in Vogel Popcorn. Respondent claimed refunds for taxes paid in certain tax years for which it did not claim a full surtax exemption, asserting that respondent and Vogel Popcorn were not members of a controlled group and respondent was therefore entitled to a full surtax exemption for each taxable year. When the Internal Revenue Service disallowed the refund claims, respondent filed suit for a refund in the Court of Claims, which held that respondent was entitled to a refund. Held : The implementing Treasury Regulation is invalid as not being a reasonable interpretation of the statute, which, as indicated by its language, structure, and legislative history, was intended to apply only where each person whose stock is taken into account for purposes of the 80-percent requirement owns stock in each corporation of the group. Pp. 22-35. (a) Since the Regulation was promulgated only under the Commissioner of Internal Revenue's general authority to prescribe all needful rules and regulations, it is owed less deference than a regulation issued under a specific grant of authority to define a statutory term. Moreover, the Regulation purports to do no more than add a clarifying gloss on a term already specifically defined by Congress. Pp. 24-25. (b) The statutory language is in closer harmony with respondent's interpretation than with the Regulation in question. The term the statute defines—"brother-sister controlled group"—connotes a close horizontal relationship between two or more corporations, suggesting that the same indivisible group of five or fewer persons must represent 80 percent of the ownership of each corporation. This interpretation is strengthened by the structure of the statute, which suggests that precisely the same shareholders must satisfy both the 80-percent and 50-percent requirements. Since under Part (B)'s 50-percent requirement, stock ownership is taken into account only to the extent it is "identical," that part of the statutory test clearly includes a common ownership requirement. And the mere fact that there are no words in Part (A) explicitly requiring each shareholder to own stock in each corporation does not mean that the Regulation's interpretation, "singly or in combination," must be accepted as reasonable. Pp. 25-26. (c) The statute's legislative history makes it plain that the Regulation is not a reasonable statutory interpretation, where it appears that the intended targets of § 1563(a)(2) were groups of interrelated corporations—corporations characterized by common control and ownership—and that Congress intended the 80-percent requirement, as an expanded version of the former statute, to be the primary requirement for defining the interrelationship between two or more corporations, the 50-percent requirement being an additional proviso necessary in light of the expanded number of shareholders whose overlapping interests were to be considered. The "singly or in combination" provision of the Regulation is clearly incompatible with this intent. Pp. 26-32. 225 Ct.Cl. 15, 634 F.2d 497, affirmed. Stuart A. Smith, Washington, D. C., for petitioner. Ronald C. Jensen, Omaha, Neb., for respondent. Justice BRENNAN delivered the opinion of the Court. 1 Section 1561(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 1561(a), limits a "controlled group of corporations" to a single corporate surtax exemption.1 Section 1563(a)(2) provides that a "controlled group of corporations" includes a "brother-sister controlled group," defined as "[t]wo or more corporations if 5 or fewer persons . . . own . . . stock possessing (A) at least 80 percent of the total combined voting power . . . or at least 80 percent of the total value . . . of each corporation, and (B) more than 50 percent of the total combined voting power . . . or more than 50 percent of the total value . . . of each corporation, taking into account the stock ownership of each such person only to the extent such stock ownership is identical with respect to each such corporation."2 The interpretation of the statutory provision by Treas.Reg. § 1.1563-1(a)(3), 26 CFR § 1.1563-1(a)(3) (1981), is that the "term 'brother-sister controlled group' means two or more corporations if the same five or fewer persons . . . own . . . singly or in combination " the two prescribed percentages of voting power or total value.3 The question presented is whether the regulatory interpretation—that the statutory definition is met by the ownership of the prescribed stock by five or fewer persons "singly or in combination"—is a reasonable implementation of the statute or whether Congress intended the statute to apply only where each person whose stock is taken into account owns stock in each corporation of the group. 2 * Respondent Vogel Fertilizer Co. (Vogel Fertilizer), an Iowa corporation, sells farm fertilizer products. During the tax years in question—1973, 1974, and 1975—Vogel Fertilizer had only common stock issued and outstanding and Arthur Vogel (Vogel) owned 77.49 percent of that stock. Richard Crain (Crain), who is unrelated to Arthur Vogel, owned the remaining 22.51 percent. Vogel Popcorn Co. (Vogel Popcorn), another Iowa corporation, sells popcorn in both the wholesale and retail markets. For the tax years in question Crain owned no stock in Vogel Popcorn. Vogel, however, held 87.5 percent of the voting power, and between 90.66 percent and 93.42 percent of the value of Vogel Popcorn's stock.4 3 Vogel Fertilizer did not claim a full surtax exemption on its tax returns for the years in question,5 believing that Treas.Reg. § 1.1563-1(a)(3) barred such a claim. But when the United States Tax Court, in 1976, held that Treas.Reg. § 1.1563-1(a)(3) was invalid because the statute did not permit the Commissioner to take a person's stock ownership into account for purposes of the 80-percent requirement unless that person owned stock in each corporation within the brother-sister controlled group, Fairfax Auto Parts of Northern Virginia, Inc. v. Commissioner, 65 T.C. 798 (1976), rev'd, 548 F.2d 501 (CA4 1977), Vogel Fertilizer filed timely claims for refunds, asserting that Vogel Fertilizer and Vogel Popcorn were not members of a controlled group and that Vogel Fertilizer was therefore entitled to a full surtax exemption for each taxable year. The Internal Revenue Service disallowed the claims and respondent brought this suit for a refund in the United States Court of Claims. The Court of Claims held that Vogel Fertilizer and Vogel Popcorn did not constitute a brother-sister controlled group within the meaning of § 1563(a)(2)(A); that Treas.Reg. § 1.1563-1(a)(3) is invalid to the extent that it takes into account, with respect to the 80-percent requirement, stock held by a shareholder who owns stock in only one corporation of the controlled group; and that respondent was, accordingly, entitled to a refund. 225 Ct.Cl. 15, 634 F.2d 497 (1980). We granted certiorari to resolve a conflict among the Circuits on this issue, 450 U.S. 994, 101 S.Ct. 1693, 68 L.Ed.2d 192 (1981),6 and now affirm. II 4 Vogel's ownership of more than 50 percent of both Vogel Fertilizer and Vogel Popcorn satisfies Part (B) of the statutory test—the 50-percent identical-ownership requirement. The controversy centers on Part (A) of the test—the 80-percent requirement. 5 Respondent argues that the statute must be construed as including a common-ownership requirement—Congress was attempting to identify interrelated corporations that are in reality subdivided portions of a larger entity. In the taxpayer's view, Congress thus did not intend that a person's stock ownership be taken into account for purposes of the 80-percent requirement unless that shareholder owned stock in all of the corporations within the controlled group. The same "5 or fewer" individuals cannot be said to control 80 percent of both Vogel Fertilizer and Vogel Popcorn because Crain owns no stock in Vogel Popcorn and therefore his 22.51 percent of Vogel Fertilizer cannot be added to Vogel's 77.49 percent of that corporation to satisfy § 1563(a)(2)(A). The Commissioner takes the position, however, reflected in his addition of the words "singly or in combination" in Treas.Reg. § 1.1563-1(a)(3) to the statutory language, that there is no common-ownership requirement—various subgroups of "5 or fewer persons" can own the requisite 80 percent of the different corporations within the controlled group. The Commissioner acknowledges that under this interpretation, Part (A)'s 80-percent requirement in no respect measures the interrelationship between two corporations. The Commissioner's view is that only the 50-percent requirement measures this interrelationship. He contends the 80-percent requirement "continues to have independent significance" in that it "insures that all the members of the corporate group will be closely held," so that "the more-than-50-percent shareholder control group can obtain additional control in those instances where a greater interest is needed without the necessity of dealing with a large number of other shareholders." Brief for United States 35.7 6 * Our role is limited to determining the validity of Treas.Reg. § 1.1563-1(a)(3). Deference is ordinarily owing to the agency construction if we can conclude that the regulation "implement[s] the congressional mandate in some reasonable manner." United States v. Correll, 389 U.S. 299, 307, 88 S.Ct. 445, 450, 19 L.Ed.2d 537 (1967). But this general principle of deference, while fundamental, only sets "the framework for judicial analysis; it does not displace it." United States v. Cartwright, 411 U.S. 546, 550, 93 S.Ct. 1713, 1716, 36 L.Ed.2d 528 (1973). 7 The framework for analysis is refined by consideration of the source of the authority to promulgate the regulation at issue. The Commissioner has promulgated Treas.Reg. § 1.1563-1(a)(3) interpreting this statute only under his general authority to "prescribe all needful rules and regulations." 26 U.S.C. § 7805(a). Accordingly, "we owe the interpretation less deference than a regulation issued under a specific grant of authority to define a statutory term or prescribe a method of executing a statutory provision." Rowan Cos. v. United States, 452 U.S. 247, 253, 101 S.Ct. 2288, 2292, 68 L.Ed.2d 814 (1981). In addition, Treas.Reg. § 1.1563-1(a)(3) purports to do no more than add a clarifying gloss on a term—"brother-sister controlled group"—that has already been defined with considerable specificity by Congress. The Commissioner's authority is consequently more circumscribed than would be the case if Congress had used a term " 'so general . . . as to render an interpretive regulation appropriate.' " National Muffler Dealers Assn., Inc., v. United States, 440 U.S. 472, 476, 99 S.Ct. 1304, 1306, 59 L.Ed.2d 519 (1979), quoting Helvering v. R. J. Reynolds Co., 306 U.S. 110, 114, 59 S.Ct. 423, 425, 83 L.Ed. 536 (1939). See also Rowan Cos. v. United States, supra. B 8 We consider first whether the Regulation harmonizes with the statutory language. National Muffler Dealers Assn., Inc. v. United States, supra, 440 U.S., at 477, 99 S.Ct., at 1307. That language, set forth supra, at 477, and n. 2, while not completely unambiguous, is in closer harmony with the taxpayer's interpretation than with the Commissioner's Regulation. The term that the statute defines—"brother-sister controlled group" connotes a close horizontal relationship between two or more corporations, suggesting that the same indivisible group of five or fewer persons must represent 80 percent of the ownership of each corporation. 9 This interpretation is strengthened by the structure of the statute. Section 1563(a)(2) defines the controlling group of shareholders ("5 or fewer"), and then sets forth the two ownership requirements (80 percent and 50 percent). This structure suggests that precisely the same shareholders must satisfy both the 80-percent and 50-percent requirements. As the Tax Court stated it, "5 or fewer persons" is the "conjunctive subject" of both requirements. Fairfax Auto Parts of Northern Virginia, Inc. v. Commissioner, 65 T.C., at 803. Since under Part (B)'s 50-percent requirement, stock ownership is taken into account only to the extent it is "identical," that part of the statutory test clearly includes a common-ownership requirement. If, as the statutory structure suggests, the shareholders whose holdings are considered for purposes of Part (A) must be precisely the same shareholders as those whose holdings are considered for purposes of Part (B), the former also requires common ownership.8 Of course, a Treasury Regulation is not invalid simply because the statutory language will support a contrary interpretation. But the mere fact that there are no words in Part (A) explicitly requiring that each shareholder own stock in each corporation does not mean that the Regulation's interpretation, "singly or in combination," must be accepted as reasonable. This Court has firmly rejected the suggestion that a regulation is to be sustained simply because it is not "technically inconsistent" with the statutory language, when that regulation is fundamentally at odds with the manifest congressional design. United States v. Cartwright, supra, at 557, 93 S.Ct., at 1719. The challenged Regulation is not a reasonable statutory interpretation unless it harmonizes with the statute's "origin and purpose." National Muffler Dealers Assn., Inc. v. United States, supra, 440 U.S., at 477, 99 S.Ct., at 1307. C 10 The legislative history of § 1563(a)(2) resolves any ambiguity in the statutory language and makes it plain that Treas.Reg. § 1.1563-1(a)(3) is not a reasonable statutory interpretation. Through the controlled-group test, Congress intended to curb the abuse of multiple incorporation—large organizations subdividing into smaller corporations and receiving unintended tax benefits from the multiple use of surtax exemptions, accumulated earnings credits, and various other tax provisions designed to aid small businesses. S.Rep.No. 91-552, p. 134 (1969), U.S.Code Cong. & Admin.News 1969, p. 1645. The House Ways and Means Committee Report noted: "Large organizations have been able to obtain substantial benefits . . . by dividing the organization's income among a number of related corporations. Your committee does not believe that large organizations which operate through multiple corporations should be allowed to receive the substantial and unintended tax benefits resulting from the multiple use of the surtax exemption and the other provisions of present law." H.R.Rep.No. 91-413, pt. 1, p. 98 (1969), U.S.Code Cong. & Admin.News 1969, pp. 1746-1747. The intended targets of § 1563(a)(2) were groups of interrelated corporations—corporations characterized by common control and ownership. Although the 50-percent requirement measures, to a lesser degree, the overlap between two corporations, the history of the enactment of § 1563(a)(2) illustrates that Congress intended that the 80-percent requirement be the primary requirement for defining the interrelationship between two or more corporations. 11 Until 1964, the method prescribed by the Code to curb the abuse of multiple incorporation was subjective: Multiple exemptions or benefits were allowed or disallowed depending on the reasons for the taxpayer's actions.9 The Revenue Act of 1964 changed this approach, adding §§ 1561-1563 to the Code. Pub.L. 88-272, § 235(a), 78 Stat. 116-125. These sections prescribed the application of mechanical, objective tests for determining whether two corporations were a "controlled group" and thereby restricted to one surtax exemption. The original, 1964, definition of a "brother-sister controlled group" was: 12 "Two or more corporations if stock possessing at least 80 percent of the total combined voting power of all classes of stock entitled to vote or at least 80 percent of the total value of shares of all classes of stock of each of the corporations is owned . . . by one person who is an individual, estate, or trust." 26 U.S.C. § 1563(a)(2) (1964 ed.). 13 Because corporations were not part of a controlled group unless the same person owned 80 percent of all corporations within the group, the 1964 provision clearly included a common-ownership requirement. 14 In 1969 Congress adopted the present two-part percentage test codified in § 1563(a)(2). Pub.L. 91-172, § 401(c), 83 Stat. 602. This change was proposed by the Treasury Department as part of an extensive package of tax reform proposals. See Hearings Before the House Committee on Ways and Means on the Subject of Tax Reform, 91st Cong., 1st Sess., pt. 14, pp. 5050-5478 (1969) (hereinafter Hearings). The Treasury Department proposed, inter alia, that the definition of a brother-sister controlled group "be broadened to include groups of corporations owned and controlled by five or fewer persons, rather than only those owned and controlled by one person," as was the case under then existing law. Id., at 5166. In setting forth the "Technical Explanation" for this new definition of brother-sister controlled groups, the Treasury Department was most explicit that the 80-percent requirement, like the 50-percent requirement, included common ownership: "[T]he same five or fewer persons [must] own at least 80 percent of the voting stock or value of shares of each corporation and . . . these five or fewer individuals" must satisfy the 50-percent requirement in Part (B). Id., at 5168 (emphasis added except for "five "). 15 The Treasury Department's "General Explanation" of the amendment to § 1563(a)(2) defined a brother-sister controlled group as one "in which five or fewer persons own, to a large extent in identical proportions, at least 80 percent of the stock of each of the corporations." Hearings, at 5394 (footnote omitted). The General Explanation then set forth the respective roles of the expanded 80-percent requirement and the new 50-percent requirement: 16 "This provision expands present law by considering the combined stock ownership of five individuals, rather than one individual, in applying the 80-percent test. . . . 17 "However, in order to insure that this expanded definition of brother-sister controlled group applies only to those cases where the five or fewer individuals hold their 80 percent in a way which allows them to operate the corporations as one economic entity, the proposal would add an additional rule that the ownership of the five or fewer individuals must constitute more than 50 percent of the stock of each corporation considering, in this test of ownership, stock of a particular person only to the extent that it is owned identically with respect to each corporation." Ibid. 18 The General Explanation made it clear that, under the 1969 amendment to § 1563(a)(2), the 80-percent requirement would remain the primary basis for determining whether two or more corporations represent the same financial interests. Part (A) of the 1969 test was simply an expansion of the 1964 test, which considered the two or more corporations to be a brother-sister controlled group only when one person owned 80 percent of all of the corporations. This "expansion" was necessary to "close the present opportunity for easy avoidance" of the 80-percent test. Hearings, at 5396. Because five persons now played the role previously played by one, this expanded version of the test required a new safeguard—the 50-percent requirement—to "insure that the new expanded definition is limited to cases where the brother-sister corporations are, in fact, controlled by the group of stockholders as one economic enterprise." Ibid. (emphasis added).10 19 The "singly or in combination" provision of Treas.Reg. § 1.1563-1(a)(3) is clearly incompatible with the explanation offered by the Treasury Department when it proposed the statute. In addition to the explicit statement that the members of the controlling group must own stock in "each" corporation, the Treasury Department presented a test in which the 80-percent requirement remained the primary indicia of interrelationship. But under the challenged Regulation, the 80-percent requirement measures only whether or not the brother-sister corporations are closely held. The fact that a corporation is closely held, absent common ownership, is irrelevant to the congressional purpose of identifying interrelationship: "It is not the smallness of the number of persons in each company that triggers § 1563; it is the sameness of that small number." T. L. Hunt, Inc. v. Commissioner, 562 F.2d 532, 537 (CA8 1977) (Webster, J. dissenting).11 20 The Treasury Department's explanations of the proposed statute are not, as the dissent in the Court of Claims suggested, a mere "admission against interest" by the Commissioner. 225 Ct.Cl., at 44, 634 F.2d, at 514. The expanded definition of "brother-sister controlled group" was proposed by the Treasury Department and adopted in the same form in which it was presented. Of course, it is Congress' understanding of what it was enacting that ultimately controls. But we necessarily attach "great weight" to agency representations to Congress when the administrators "participated in drafting and directly made known their views to Congress in committee hearings." Zuber v. Allen, 396 U.S. 168, 192, 90 S.Ct. 314, 327, 24 L.Ed.2d 345 (1969). The subsequent legislative history of § 1563(a)(2) confirms that Congress adopted not only the proposal of the Treasury Department, but also the Department's explanation and interpretation which are wholly incompatible with the "singly or in combination" interpretation of the Regulation. The Ways and Means Committee Report stated: 21 "This bill expands the definition [of a brother-sister controlled group] to include two or more corporations which are owned 80 percent or more (by voting power or value) by five or fewer persons (individuals, estates, or trusts) provided that these five or fewer persons own more than 50 percent of each corporation when the stock of each person is considered only to the extent it is owned identically with respect to each corporation." H.R.Rep.No. 91-413, pt. 1, p. 99 (1969) U.S.Code Cong. & Admin.News 1969, p. 1748. 22 The House Committee Report thus reflects the Treasury Department's explanations—the 80-percent requirement is an expanded version of the 1964 statute and measures overlapping interests, while the 50-percent requirement is an additional proviso necessary in light of the expanded number of shareholders whose overlapping interests were to be considered.12 D 23 The Commissioner's further reasons for sustaining his interpretation are unpersuasive. 24 The Commissioner relies on the fact that, in expanding the coverage of § 1563(a)(2), Congress expressly adopted part of the language used in § 1551(b)(2) of the Code to describe a transfer from one corporation to another "controlled" by the same "five or fewer" individuals. The Commissioner contends that Congress thereby approved the interpretation the Commissioner had placed on § 1551(b)(2). Even if we could assume that Congress was aware of Treasury Regulations interpreting § 1551, promulgated only two years before § 1563 was enacted, see 32 Fed.Reg. 3214-3216 (1967), the promulgated regulations do not support the Commissioner's present interpretation of the statutory language in § 1563(a)(2). The Regulations defining control under § 1551 contain no language similar to the words "singly or in combination" found in Treas.Reg. § 1.1563-1(a)(3) and they contain no suggestion that the Treasury Department had interpreted § 1551(b)(2) as not having a common-ownership requirement. See Treas.Reg. § 1.1551-1(e), 26 CFR § 1.1551-1(e) (1981).13 25 Also unpersuasive is the Commissioner's reliance on the fact that § 1563(a)(2) is referred to in § 1015 of the Employee Retirement Income Security Act of 1974, 26 U.S.C. § 414.14 From this the Commissioner infers congressional approval of all the Regulations promulgated under § 1563(a)(2), including the Regulation at issue in this case. But it is the intent of the Congress that amended § 1563(a), not the views of the subsequent Congress that enacted § 414, that are controlling. See Teamsters v. United States, 431 U.S. 324, 354, n. 39, 97 S.Ct. 1843, 1864, n. 39, 52 L.Ed.2d 396 (1977). In any event, this passing reference in 26 U.S.C. § 414(b), enacted only two years after Treas.Reg. § 1.1563-1(a)(3) was promulgated, 37 Fed.Reg. 8068-8070 (1972), hardly constitutes legislative approval of a longstanding administrative interpretation, from which we could infer any congressional acceptance. Cf. United States v. Correll, 389 U.S., at 305-306, 88 S.Ct., at 448-449. 26 Finally, the Commissioner seeks to uphold the Regulation on the ground that a common-ownership requirement leads to the assertedly nonsensical result that ownership of only one share could be determinative. For example, if Crain owned but one share of Vogel Popcorn, then the 80-percent requirement would be met and the taxpayer corporation would be part of a controlled group even under the taxpayer's interpretation of the statute. This argument is without merit, for several reasons. First, Congress purposefully substituted the mechanical formula of § 1563(a)(2) for the subjective, case-by-case analysis that had previously prevailed. Inherent in such an objective test is a sharp dividing line that is crossed by incremental changes in ownership. Moreover, it is obvious that a shareholder would not buy a small amount of stock in order to create a controlled group, since it is to the taxpayer's advantage not to be part of such a group. Finally, a person's "mere" ownership of one share of stock plays an important role in the operation of the test. It insures that each of the "5 or fewer" shareholders representing the bulk of the financial interest of the corporations actually knows of the other corporations within the putative brother-sister controlled group. Under this construction of the statute, controlled-group membership cannot catch such a shareholder by surprise, as it could under the Commissioner's construction. 27 Affirmed. 28 Justice BLACKMUN, with whom Justice WHITE joins, dissenting. 29 I cannot deny that the Court's opinion persuasively defends a possible interpretation of 26 U.S.C. § 1563(a)(2). In my view, however, the Court has totally failed to establish that the Commissioner's interpretation is incorrect. Because I believe that the only certainty about the language and history of § 1563(a)(2) is that both are ambiguous, I would defer to the Commissioner's judgment. 30 The Court begins by declaring that the statutory language, "while not completely unambiguous, is in closer harmony with the taxpayer's interpretation than with the Commissioner's Regulation" because the term " 'brother-sister controlled group'—connotes a close horizontal relationship between two or more corporations." Ante, at 25 (emphasis in original). In taking this approach, however, the Court simply assumes its conclusion. The 50-percent test of Part (B) already ensures a horizontal relationship between the corporations that constitute the controlled group; nothing in the language of the statute suggests that Part (A) was designed directly to serve the same purpose. At most, § 1563(a)(2) can be read to require that the same set of five or fewer persons must satisfy the 50- and 80-percent tests; the statute is entirely silent as to whether each member of the set must own stock in each corporation. And, unlike the Court, I have difficulty inferring this conclusion from the term "brother-sister controlled group," a phrase that appears only in the heading of the subsection and that is hardly a household term with an intuitively obvious meaning. 31 Similar problems attend the Court's analysis of the statute's structure. In the Court's view, the fact that the controlling group of shareholders is defined as "5 or fewer" for both the 50- and 80-percent tests "suggests that precisely the same shareholders must satisfy both the 80-percent and 50-percent requirements." Ante, at 25. Even if this were true, however, it would not mean that each member of the set of five or fewer shareholders must own stock in each corporation; it suggests only that the total number of shareholders considered in relation to both tests may not exceed five. In any event, the common-ownership requirement—which takes "into account the stock ownership of each such person only to the extent such stock ownership is identical with respect to each such corporation," § 1563(a)(2)(B)—is embedded in Part (B), and the simpler and normal reading of the statute therefore would apply the common-ownership restriction only to Part (B)'s 50-percent test.1 It is the Court's reading, then, that seemingly runs counter to the structure of the statute, for under its approach the 80-percent test would "tend to overlap or swallow the 50% identical ownership requirement." Allen Oil Co. v. Commissioner, 614 F.2d 336, 339 (CA2 1980). 32 The confusing nature of the statutory text leads the Court to rely principally on § 1563(a)(2)'s legislative history, which it cheerfully reads as "resolv[ing] any ambiguity in the statutory language." Ante, at 26. It seems to me that this conclusion is substantially overstated. It is undoubtedly true, as the Court observes, that § 1563(a)(2) was aimed at curbing the abuses of multiple incorporation. But this is beside the point, for—as the Court notes—the 50-percent test of Part (B) itself serves to "measur[e] . . . the overlap between two corporations." Ante, at 27. The Court's further conclusion "that Congress intended that the 80-percent requirement be the primary requirement for defining the interrelationship between two or more corporations," ibid. (emphasis in original), is entirely without support in the legislative history.2 Certainly, such a view appears nowhere in the congressional Reports. These simply echo the statutory definition, declaring that a controlled group includes "two or more corporations which are owned 80 percent or more . . . by five or fewer persons . . . provided that these five or fewer persons own more than 50 percent of each corporation when the stock of each person is considered only to the extent it is owned identically with respect to each corporation." H.R.Rep.No. 91-413, pt. 1, p. 99 (1969) U.S.Code Cong. & Admin.News 1969, p. 1748. Accord, S.Rep.No. 91-552, p. 135 (1969) U.S.Code Cong. & Admin.News 1969, p. 2167. Again, however, the legislative documents prove only that the same set must satisfy the 80- and 50-percent tests; they cannot easily be read to require that each member of the set own stock in every corporation. 33 Ironically, then, the Court at bottom is forced to rely on the rationale advanced by the Treasury Department when it proposed the legislation eventually adopted as § 1563(a)(2). The Court's analysis of this proposal, which it explores in some detail, ante, at 28-30, is certainly credible. But even this legislative material contains an essential ambiguity.3 Neither the "General Explanation" nor the "Technical" one addresses whether the 80-percent test requires common ownership, or whether a person excluded from the 50-percent calculation because he owns no stock in one of the controlled corporations may nevertheless be included in the 80-percent test, so long as the total number of relevant shareholders does not exceed five. For example, while the Treasury Department suggested that "the same five or fewer persons [must] own at least 80 percent of the voting stock or value of shares of each corporation" to satisfy Part (A), and that "these five or fewer individuals" must satisfy the 50-percent test of Part (B), Hearings Before the House Committee on Ways and Means on the Subject of Tax Reform, 91st Cong., 1st Sess., pt. 14, p. 5168 (1969) (emphasis in original), the Department's explanation despite the Court's suggestion to the contrary—need not be read as requiring that each of the five own stock in every controlled corporation. To the contrary, the Technical Explanation declares that the 80 percent test "is satisfied if the group of five or fewer persons as a whole owns at least 80-percent of the voting stock or value of shares of each corporation, regardless of the size of the indi- vidual holdings of each person." Id., at 5169 (emphasis added). This obviously suggests that the crucial inquiry is whether a given set of five satisfies both tests, not whether each individual owns stock in each corporation. 34 Certainly, I do not suggest that the Commissioner's interpretation is compelled by the legislative materials. But the Court, by putting so much effort into reading between the lines, has lost sight of the fact that certain statutory ambiguities cannot be neatly and finally resolved. Here, the Commissioner's interpretation is not "unreasonable or meaningless," for "it insures that the stock is closely held." Allen Oil Co. v. Commissioner, 614 F.2d, at 340. In such a situation, "[t]he choice among reasonable interpretations is for the Commissioner, not the courts." National Muffler Dealers Assn., Inc. v. United States, 440 U.S. 472, 488, 99 S.Ct. 1304, 1312, 59 L.Ed.2d 519 (1979). See United States v. Correll, 389 U.S. 299, 307, 88 S.Ct. 445, 449, 19 L.Ed.2d 537 (1967). For that reason, I respectfully dissent. 1 For two of the tax years in question in this case—the years ending November 30, 1973 and 1974—the Code exempted the first $25,000 of corporate earnings from the federal surtax on corporate income, 26 U.S.C. § 11(d) (1970 ed.), and for the third year—ending November 30, 1975—the Code exempted the first $50,000. 26 U.S.C. § 11(d). For each of these tax years, however, § 1561 of the Code limited the members of a "controlled group" of corporations to a single shared surtax exemption. Amendments to the Code in 1978 replaced the surtax exemption with a graduated five-step tax rate structure on taxable corporate income. 26 U.S.C. § 11 (1976 ed., Supp.III). Now members of a controlled group must share a single rate schedule. 26 U.S.C. § 1561(a) (1976 ed., and Supp.III). 2 The full text of § 1563(a)(2) is: "Brother-sister controlled group "Two or more corporations if 5 or fewer persons who are individuals, estates, or trusts own (within the meaning of subsection (d)(2)) stock possessing— "(A) at least 80 percent of the total combined voting power of all classes of stock entitled to vote or at least 80 percent of the total value of shares of all classes of the stock of each corporation, and "(B) more than 50 percent of the total combined voting power of all classes of stock entitled to vote or more than 50 percent of the total value of shares of all classes of stock of each corporation, taking into account the stock ownership of each such person only to the extent such stock ownership is identical with respect to each such corporation." 3 The full text of the Treasury Regulation is: "Brother-sister controlled group. "(i) The term 'brother-sister controlled group' means two or more corporations if the same five or fewer persons who are individuals, estates, or trusts own (directly and with the application of the rules contained in paragraph (b) of § 1.1563-3), singly or in combination, stock possessing— "(a) At least 80 percent of the total combined voting power of all classes of stock entitled to vote or at least 80 percent of the total value of shares of all classes of the stock in each corporation; and "(b) More than 50 percent of the total combined voting power of all classes of stock entitled to vote or more than 50 percent of the total value of shares of all classes of stock of each corporation, taking into account the stock ownership of each such person only to the extent such stock ownership is identical with respect to each such corporation. "(ii) The principles of this subparagraph may be illustrated by the following examples: "Example (1). The outstanding stock of corporations P, Q, R, S, and T, which have only one class of stock outstanding, is owned by the following unrelated individuals: ------------------------------------------------------------------- ------------------- Corporations Individuals-------------------------------------------------------- --Identical P Q R S T ownership ------------------------------------------------------------------- ------------------- A. 60% 60% 60% 60% 100% 60% B. 40%...... C....40%..... D..... 40%.... E...... 40%... ------------------------------------------------------------------- ------- Total 100% 100% 100% 100% 100% 60% ------------------------------------------------------------------- ------------------- Corporations P, Q, R, S, and T are members of a brother-sister controlled group. "Example (2). The outstanding stock of corporations U and V, which have only one class of stock outstanding, is owned by the following unrelated individuals: Corporations ------------------------------- Identical Individuals U V ownership F. 5%... G. 10%... H. 10%... I. 20%... J. 55% 55% 55% K.... 10% . L.... 10% . M.... 10% . N.... 10% . O.... 5% Total. 100% 100% 55% Corporations U and V are not members of a brother-sister controlled group because at least 80 percent of the stock of each corporation is not owned by the same five or fewer persons." 4 The remainder of the Vogel Popcorn stock—voting preferred stock—was owned by Vogel as trustee of the Alex Vogel Family Trust. Under the attribution rules of 26 U.S.C. §§ 1563(d)(2), (e), Vogel is not deemed to own this stock for tax purposes. See 225 Ct.Cl. 15, 18, 634 F.2d 497, 499 (1980). 5 In the original version of §§ 1561-1563, controlled groups retained the option of taking multiple surtax exemptions and paying a penalty. See 26 U.S.C. § 1562 (1964 ed.). During the tax years in question this option was being gradually phased out. 26 U.S.C. § 1564. For 1973 and 1974 respondent utilized the multiple surtax exemption under 26 U.S.C. § 1564(a), and paid the penalty imposed by § 1562(b) (1970 ed.). For the tax year ending November 30, 1975, respondent elected to allocate entirely to Vogel Popcorn the single surtax exemption then allowed to members of a controlled group of corporations. 6 The Court of Appeals for the Fifth Circuit is in agreement with the Court of Claims and the Tax Court that Treas.Reg. § 1.1563-1(a)(3), 26 CFR § 1.1563-1(a)(3) (1981), is invalid insofar as it permits the 80-percent requirement to be satisfied without common ownership. Delta Metalforming Co. v. Commissioner, 632 F.2d 442 (1980). The Tax Court has adhered to its view that the Regulation is invalid. See e.g., Charles Baloian Co. v. Commissioner, 68 T.C. 620, 629-631 (1977); Davidson Chevrolet Co. v. Commissioner, 39 TCM 299 (1979), [¶ 79,414] P-H Memo TC; Allen Oil Co. v. Commissioner, 38 TCM 355 (1979), [¶ 79,088] P-H Memo TC; Delta Metalforming Co. v. Commissioner, 37 TCM 1485 (1978), [¶ 78,354] P-H Memo TC; T. L. Hunt, Inc. v. Commissioner, 35 TCM 966 (1976), [¶ 76,221] P-H Memo TC. This adherence has persisted in the face of reversals by the Courts of Appeals for the Second, Fourth, and Eighth Circuits. Allen Oil Co. v. Commissioner, 614 F.2d 336 (CA2 1980); Fairfax Auto Parts of Northern Virginia v. Commissioner, 548 F.2d 501 (CA4 1977) (per curiam); T. L. Hunt, Inc. v. Commissioner, 562 F.2d 532 (CA8 1977). 7 The difference between the Commissioner's and the taxpayer's positions is illustrated by the following example: ------------------------------------------------------------------- ------ Corporations Individuals Identical Ownership U V W X Y ------------------------------------------------------------------- ------ A. 55% 51% 55% 55% 55% 51% B. 45%. 49%....(45% in U&V) C.....45%... D...... 45%.. E....... 45%. ------------------------------------------------------------------- ------ [Footnote 7 is continued on p. 24] The parties would agree that the 50-percent identical-ownership requirement in Part (B) is met for all corporations by shareholder A's identical ownership of 51 percent of all of the corporations. The Commissioner would find the 80-percent requirement met as well, and would therefore define all five corporations as part of a controlled group, because various subgroups of the five or fewer shareholders can account for 80 percent of each corporation. The taxpayer's position is that only corporations U and V are part of a brother-sister controlled group, because they are the only two corporations in which precisely the same five or fewer persons account for 80 percent of the stock of the putative "brother-sister controlled" corporations. 8 This interpretation of the statutory language is also strengthened by the presence of the phrase "each such person" in Part (B). The Tax Court pointed out: "The words 'each such person' appearing therein refer to the 'five or fewer persons' constituting the ownership group for purposes of both the 80-percent and 50-percent tests. The import of such usage is that each person—and not just some of the persons counted for purposes of the 80-percent test must be also counted for purposes of the 50-percent test." Fairfax Auto Parts of Northern Virginia, Inc. v. Commissioner, 65 T.C., at 803. The Government argues that there is no justification for singling out the phrase "each such person" in Part (B) of the test and transporting it for application in the context of Part (A). This argument, however, mischaracterizes the reasoning of the Tax Court. The court merely intended to show that the term "each such person" refers back to the antecedent "5 or fewer persons," which precedes the 80-percent requirement, thereby strengthening the suggestion that there is one fixed, indivisible group of shareholders whose holdings are to be considered throughout application of both the 80-percent requirement in Part (A) and the 50-percent requirement in Part (B). 9 Before 1964, the Code provisions designed to prevent taxpayers from using the multiple form of corporate organization in order to avoid taxes were §§ 269, 482, and 1551. H.R.Rep.No. 749, 88th Cong., 1st Sess., 117 (1964), U.S.Code Cong. & Admin.News 1964, pp. 1313, 1636. Section 269 gives the Secretary the authority to disallow a tax deduction, credit, or other allowance when an acquisition was made to avoid income tax. Section 482 gives the Secretary the authority to allocate income, deductions, credits, or allowances between or among taxpayers if he determines that such an allocation is necessary in order to prevent evasion of taxes or clearly to reflect the income of the taxpayers. Section 1551 permits the Secretary to disallow a surtax exemption or accumulated earnings credit when a transfer of property between two "controlled" corporations occurs, unless the taxpayer can show that the "major purpose" of the transfer was not the securing of such benefits. All of these sections are still in effect, but they are no longer the primary weapons employed against the abuse of multiple incorporation. Rather, the purely objective tests of §§ 1561-1563 have proved to be more effective. See Thomas, Brother-Sister Multiple Corporations—The Tax Reform Act of 1969 Reformed by Regulation, 28 Tax L.Rev. 65, 66-67 (1972). 10 The Treasury Department's explanations included several examples applying the new definition of a brother-sister controlled group. In these examples, all shareholders whose stock was taken into account for purposes of the 80-percent requirement owned stock in each of the other corporations within the controlled group. See Hearings, at 5169, 5170, 5395-5396. 11 The Commissioner strains to find some ambiguity in the Treasury Department's explanations. He points to the statement in the General Explanation that a brother-sister controlled group is a "group of corporations in which five or fewer persons own, to a large extent in identical proportions, at least 80 percent of the stock of each of the corporations." Id., at 5394 (footnote omitted, emphasis added). The Commissioner contends that the italicized phrase suggests that there need not be common ownership among all those persons taken into account for purposes of the 80 percent requirement. But the words the Commissioner relies on only further support the taxpayer's position. If the shareholders own stock "to a large extent in identical proportions" they certainly own the stock to some extent in identical proportions—there is some overlap among each shareholder's holdings in each brother-sister corporation. The dissent makes a similar effort, relying on the statement in the Technical Explanation that the 80-percent requirement "is satisfied if the group of five or more persons as a whole owns at least 80-percent of the voting stock or value of shares of each corporation, regardless of the size of the individual holdings of each person." Post, at 38-39 (emphasis in opinion). This language, however, also supports the taxpayer's interpretation since it appears to assume that "each person" has holdings in each corporation. This assumption is demonstrated by the three examples which directly follow this language and are used to illustrate it: The 80-percent requirement "is met whether one person owns 80 percent of the voting stock of each corporation, four persons each own 20 percent of the voting stock of each corporation, or one person owns 60 percent of the voting stock of one corporation and 40 percent of another, and another person owns 40 percent of the voting stock of the first and 60 percent of the second." Hearings, at 5169. 12 The Senate Committee Reports describe the amendment in language almost identical to that employed by the House Report. See S.Rep.No. 91-552, p. 135 (1969); Senate Committee on Finance, Summary of H.R. 13270, Tax Reform Act of 1969, 91st Cong., 1st Sess., 49 (Comm. Print 1969). 13 The Commissioner relies on one of the examples used to define a "transfer" for purposes of § 1551—a concept that obviously has no application under § 1563(a)(2). See Treas.Reg. § 1.1551-1(g)(4), 26 CFR § 1.1551-1(g)(4). The example the Commissioner relies on provides: "Individual A owns 55 percent of the stock of corporation X. Another 25 percent of corporation X's stock is owned in the aggregate by individuals B, C, D, and E. On June 15, 1963, individual A transfers property to corporation Y (newly created for the purpose of acquiring such property) in exchange for 60 percent of the stock of Y, and B, C, and D acquire all of the remaining stock of Y. The transfer is within the scope of section 1551(a)(3)." Treas.Reg. § 1.1551-1(g)(4), Example (4), 26 CFR § 1.1551-1(g)(4), Example (4) (1981). Even if this example were read to suggest that a transferor "controls," within the meaning of § 1551(b)(2), a transferee although the persons owning 80 percent of the transferor do not each own stock in the transferee, the example would be inapplicable to § 1563(a)(2) because, as the Tax Court has pointed out, there is no method for determining which brother-sister corporation is to be regarded as the transferor and which as the transferee. See Fairfax Auto Parts of Northern Virginia, Inc., 65 T.C., at 807. See also Bonovitz, Brother-Sister Controlled Groups under Section 1563: The 80 Percent Ownership Test, 28 Tax Lawyer 511, 524, 528-530 (1975). 14 Section 414(b) provides in relevant part that "all employees of all corporations which are members of a controlled group of corporations (within the meaning of section 1563(a), determined without regard to section 1563(a)(4) and (e)(3)(C) ) shall be treated as employed by a single employer." 1 The Court concludes that the phrase "each such person" in Part (B) refers back to the "5 or fewer persons," which precedes Part (A), "strengthening the suggestion that there is one fixed, indivisible group of shareholders whose holdings are to be considered throughout application of both the 80-percent requirement in Part (A) and the 50-percent requirement in Part (B)." Ante, at 26, n. 8. But this language proves only that the total number of shareholders considered may not exceed five; it need not be read to require that each 80-percent shareholder own stock in each corporation. Indeed, the presence of an explicit common-ownership requirement in Part (B), along with the absence of analogous language in Part (A), suggests that Congress did not intend to write such a requirement into the 80-percent test. 2 The Court apparently derives this conclusion from the nature of the pre-1969 statutory scheme, under which corporations were considered to be part of a controlled group only if the same person owned 80 percent of the stock in each controlled corporation. Ante, at 28. In the Court's view, § 1563(a)(2) simply expanded the ownership group to five, retaining the 80-percent requirement as the primary test for interrelatedness. The problem with this approach is that it is entirely speculative. Congress nowhere stated that it had any such intention with regard to the 80-percent test. And the Treasury Department, when it proposed § 1563(a)(2), simply stated the obvious: it declared that the new statute "expand[ed] present law" by considering the ownership interests of five individuals, while adding a 50-percent test "to insure" that controlled corporations operate as one economic entity. Hearings Before the House Committee on Ways and Means on the Subject of Tax Reform, 91st Cong., 1st Sess., pt. 14, p. 5394 (1969). Certainly, the Court can credibly read its conclusion into this history. But the legislative materials are not inconsistent with the Commissioner's contrary view that the newly devised 50-percent test was to serve as the primary indicium of interrelatedness. Because of the absence of any explicit statement on the question in the legislative history, I find the Court's certainty somewhat surprising. 3 Indeed, throughout the course of litigation over § 1563(a)(2), both the Commissioner and the various taxpayers involved have drawn support from precisely the same portions of the Treasury Department proposals. Compare Fairfax Auto Parts of Northern Virginia, Inc. v. Commissioner, 65 T.C. 798, 803-804 (1976), rev'd, 548 F.2d 501 (CA4), cert. denied, 434 U.S. 904, 98 S.Ct. 300, 54 L.Ed.2d 190 (1977), with 65 T.C., at 809-810 (dissenting opinion). See also Allen Oil Co. v. Commissioner, 614 F.2d 336, 340, n. 4 (CA2 1980).

1112

455 U.S. 100 102 S.Ct. 867 70 L.Ed.2d 855 PRINCETON UNIVERSITY and New Jersey, Appellantsv.Chris SCHMID. No. 80-1576. Jan. 13, 1982. PER CURIAM. 1 * Appellee Schmid was arrested and charged with criminal trespass while distributing political materials on the campus of Princeton University. Schmid was not a student at Princeton University. Under University regulations then in effect, members of the public who wished to distribute materials on the campus were required to receive permission from University officials. Appellee was tried in Princeton Borough Municipal Court and on October 20, 1978, the trial judge issued an opinion convicting appellee and fining him $15 plus $10 costs. A de novo trial in the New Jersey Superior Court, Law Division, also resulted in conviction and the same fine was imposed. While appeal was pending to the Superior Court, Appellate Division, the case was certified for review by the New Jersey Supreme Court. That court invited the University to intervene and participate as a party, which it did. 2 The New Jersey Supreme Court reversed the judgment of conviction, holding that appellee's rights of speech and assembly under the New Jersey Constitution had been violated. State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980). The University filed a notice of appeal and jurisdictional statement. Its claim is that the judgment below deprives it of its rights under the First, Fifth, and Fourteenth Amendments of the United States Constitution. The State of New Jersey did not file a separate jurisdictional statement but joined in that of the University. We postponed jurisdiction, 451 U.S. 982, 101 S.Ct. 2312, 68 L.Ed.2d 838 (1981), and now dismiss the appeal for want of jurisdiction. II 3 The State of New Jersey has filed a brief in this Court asking us to review and decide the issues presented, but stating that it "deems it neither necessary nor appropriate to express an opinion on the merits of the respective positions of the private parties to this action." Brief for Appellant State of New Jersey 4. Had the University not been a party to this case in the New Jersey Supreme Court and had the State filed a jurisdictional statement urging reversal, the existence of a case or controversy and of jurisdiction in this Court—could not be doubted. However, if the State were the sole appellant and its jurisdictional statement simply asked for review and declined to take a position on the merits, we would have dismissed the appeal for want of a case or controversy. We do not sit to decide hypothetical issues or to give advisory opinions about issues as to which there are not adverse parties before us. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 731-732, 92 S.Ct. 1361, 1364-1365, 31 L.Ed.2d 636 (1972); Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968). Thus the presence of the State of New Jersey in this case does not provide a sound jurisdictional basis for undertaking to decide difficult constitutional issues. 4 Princeton defends its own standing and our jurisdiction on the grounds that it was a party to the case in the New Jersey Supreme Court,* that it is bound by the judgment of that court with respect to the validity of its regulations, and that no other forum is available in which to challenge the judgment on federal constitutional grounds. We have determined, however, that we lack jurisdiction with respect to Princeton. The New Jersey Supreme Court noted that while the case was pending on appeal, the University substantially amended its regulations governing solicitation, distribution of literature, and similar activities on University property by those not affiliated with the University. 84 N.J., at 539-541, n. 2, 568, 423 A.2d, at 617-618, n. 2, 633. The opinion below rested on the absence of a reasonable regulatory scheme governing expressional activity on University property, but the regulation at issue is no longer in force. Furthermore, the lower court's opinion was careful not to pass on the validity of the revised regulation under either the Federal or the State Constitution. Thus the issue of the validity of the old regulation is moot, for this case has "lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract questions of law." Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 201, 24 L.Ed.2d 214 (1969) (per curiam). 5 Princeton does not claim standing on the ground that a private party may intervene and challenge the reversal of a criminal conviction of another party. See Linda R. S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973). Its alleged standing in this Court rests on its claim that the judgment below would be res judicata against it and that it has thus finally been deprived of the authority to enforce the regulation as it stood prior to amendment. Since the judgment, however, does not prevent it from having the validity of its new regulation ruled upon in another enforcement action, the University is without standing to invoke our jurisdiction. Accordingly, we dismiss the appeal. 6 So ordered. 7 Justice BRENNAN took no part in the consideration or decision of this case. * That Princeton had standing in state court does not determine the power of this Court to consider the issue. Any determination of who has standing to assert constitutional rights is a federal question to be decided by the Court itself. Cramp v. Board of Public Instruction, 368 U.S. 278, 282, 82 S.Ct. 275, 278, 7 L.Ed.2d 285 (1961); United States v. Raines, 362 U.S. 17, 23, n. 3, 80 S.Ct. 519, 524, n. 3, 4 L.Ed.2d 524 (1960).

89

455 U.S. 104 102 S.Ct. 869 71 L.Ed.2d 1 Monty Lee EDDINGS, Petitioner,v.OKLAHOMA. No. 80-5727. Argued Nov. 2, 1981. Decided Jan. 19, 1982. Syllabus Petitioner was convicted in an Oklahoma trial court of first-degree murder for killing a police officer and was sentenced to death. At the time of the offense petitioner was 16 years old, but he was tried as an adult. The Oklahoma death penalty statute provides that in a sentencing proceeding evidence may be presented as to "any mitigating circumstances" or as to any of certain enumerated aggravating circumstances. At the sentencing hearing, the State alleged certain of the enumerated aggravating circumstances, and petitioner, in mitigation, presented substantial evidence of a turbulent family history, of beatings by a harsh father, and of serious emotional disturbance. In imposing the death sentence, the trial judge found that the State had proved each of the alleged aggravating circumstances. But he refused, as a matter of law, to consider in mitigation the circumstances of petitioner's unhappy upbringing and emotional disturbance, and found that the only mitigating circumstance was petitioner's youth, which circumstance was held to be insufficient to outweigh the aggravating circumstances. The Oklahoma Court of Criminal Appeals affirmed. Held : The death sentence must be vacated as it was imposed without "the type of individualized consideration of mitigating factors . . . required by the Eighth and Fourteenth Amendments in capital cases," Lockett v. Ohio, 438 U.S. 586, 606, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973. Pp. 110-116. (a) "[T]he Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, supra, at 604, 98 S.Ct. at 2964. This rule follows from the requirement that capital punishment be imposed fairly and with reasonable consistency or not at all, and recognizes that a consistency produced by ignoring individual differences is a false consistency. Pp. 110-112. (b) The limitation placed by the courts below upon the mitigating evidence they would consider violated the above rule. Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence. The sentencer and the reviewing court may determine the weight to be given relevant mitigating evidence but may not give it no weight by excluding it from their consideration. Here, the evidence of a difficult family history and of emotional disturbance petitioner offered at the sentencing hearing should have been duly considered in sentencing. Pp. 112-116. 616 P.2d 1159, reversed in part and remanded. Jay C. Baker, Tulsa, Okl., for petitioner. David W. Lee, Oklahoma City, Okl., for respondent. Justice POWELL delivered the opinion of the Court. 1 Petitioner Monty Lee Eddings was convicted of first-degree murder and sentenced to death. Because this sentence was imposed without "the type of individualized consideration of mitigating factors . . . required by the Eighth and Fourteenth Amendments in capital cases," Lockett v. Ohio, 438 U.S. 586, 606, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978) (opinion of BURGER, C. J.), we reverse. 2 * On April 4, 1977, Eddings, a 16-year-old youth, and several younger companions ran away from their Missouri homes. They traveled in a car owned by Eddings' brother, and drove without destination or purpose in a southwesterly direction eventually reaching the Oklahoma Turnpike. Eddings had in the car a shotgun and several rifles he had taken from his father. After he momentarily lost control of the car, he was signalled to pull over by Officer Crabtree of the Oklahoma Highway Patrol. Eddings did so, and when the officer approached the car, Eddings stuck a loaded shotgun out of the window and fired, killing the officer. 3 Because Eddings was a juvenile, the State moved to have him certified to stand trial as an adult. Finding that there was prosecutive merit to the complaint and that Eddings was not amenable to rehabilitation within the juvenile system, the trial court granted the motion. The ruling was affirmed on appeal. In re M.E., 584 P.2d 1340 (Okla.Crim.App.), cert. denied sub nom. Eddings v. Oklahoma, 436 U.S. 921, 98 S.Ct. 2271, 56 L.Ed.2d 763 (1978). Eddings was then charged with murder in the first degree, and the District Court of Creek County found him guilty upon his plea of nolo contendere. 4 The Oklahoma death penalty statute provides in pertinent part: 5 "Upon conviction . . . of guilt of a defendant of murder in the first degree, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment. . . . In the sentencing proceeding, evidence may be presented as to any mitigating circumstances or as to any of the aggravating circumstances enumerated in this act." Okla.Stat., Tit. 21, § 701.10 (1980) (emphasis added). 6 Section 701.12 lists seven separate aggravating circumstances; the statute nowhere defines what is meant by "any mitigating circumstances." 7 At the sentencing hearing, the State alleged three of the aggravating circumstances enumerated in the statute: that the murder was especially heinous, atrocious, or cruel, that the crime was committed for the purpose of avoiding or preventing a lawful arrest, and that there was a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. §§ 701.12(4), (5), and (7). 8 In mitigation, Eddings presented substantial evidence at the hearing of his troubled youth. The testimony of his supervising Juvenile Officer indicated that Eddings had been raised without proper guidance. His parents were divorced when he was 5 years old, and until he was 14 Eddings lived with his mother without rules or supervision. App. 109. There is the suggestion that Eddings' mother was an alcoholic and possibly a prostitute. Id., at 110-111. By the time Eddings was 14 he no longer could be controlled, and his mother sent him to live with his father. But neither could the father control the boy. Attempts to reason and talk gave way to physical punishment. The Juvenile Officer testified that Eddings was frightened and bitter, that his father overreacted and used excessive physical punishment: "Mr. Eddings found the only thing that he thought was effectful with the boy was actual punishment, or physical violence—hitting with a strap or something like this."1 Id., at 121. 9 Testimony from other witnesses indicated that Eddings was emotionally disturbed in general and at the time of the crime, and that his mental and emotional development were at a level several years below his age. Id., at 134, 149, and 173. A state psychologist stated that Eddings had a sociopathic or antisocial personality and that approximately 30% of youths suffering from such a disorder grew out of it as they aged. Id., at 137 and 139. A sociologist specializing in juvenile offenders testified that Eddings was treatable. Id., at 149. A psychiatrist testified that Eddings could be rehabilitated by intensive therapy over a 15- to 20-year period. Id., at 181. He testified further that Eddings "did pull the trigger, he did kill someone, but I don't even think he knew that he was doing it."2 The psychiatrist suggested that, if treated, Eddings would no longer pose a serious threat to society. Id., at 180-181. 10 At the conclusion of all the evidence, the trial judge weighed the evidence of aggravating and mitigating circumstances. He found that the State had proved each of the three alleged aggravating circumstances beyond a reasonable doubt.3 Turning to the evidence of mitigating circumstances, the judge found that Eddings' youth was a mitigating factor of great weight: "I have given very serious consideration to the youth of the Defendant when this particular crime was committed. Should I fail to do this, I think I would not be carrying out my duty." Id., at 188-189. But he would not consider in mitigation the circumstances of Eddings' unhappy upbringing and emotional disturbance: "[T]he Court cannot be persuaded entirely by the . . . fact that the youth was sixteen years old when this heinous crime was committed. Nor can the Court in following the law, in my opinion, consider the fact of this young man's violent background." Id., at 189 (emphasis added). Finding that the only mitigating circumstance was Eddings' youth and finding further that this circumstance could not outweigh the aggravating circumstances present, the judge sentenced Eddings to death. 11 The Court of Criminal Appeals affirmed the sentence of death. 616 P.2d 1159 (1980). It found that each of the aggravating circumstances alleged by the State had been present.4 It recited the mitigating evidence presented by Eddings in some detail, but in the end it agreed with the trial court that only the fact of Eddings' youth was properly considered as a mitigating circumstance: 12 "[Eddings] also argues his mental state at the time of the murder. He stresses his family history in saying he was suffering from severe psychological and emotional disorders, and that the killing was in actuality an inevitable product of the way he was raised. There is no doubt that the petitioner has a personality disorder. But all the evidence tends to show that he knew the difference between right and wrong at the time he pulled the trigger, and that is the test of criminal responsibility in this State. For the same reason, the petitioner's family history is useful in explaining why he behaved the way he did, but it does not excuse his behavior." Id., at 1170 (citation omitted). II 13 In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), Chief Justice BURGER, writing for the plurality, stated the rule that we apply today:5 14 "[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Id., at 604, 98 S.Ct., at 2964 (emphasis in original). 15 Recognizing "that the imposition of death by public authority is . . . profoundly different from all other penalties," the plurality held that the sentencer must be free to give "independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation. . . ." Id., at 605, 98 S.Ct., at 2965. Because the Ohio death penalty statute only permitted consideration of three mitigating circumstances, the Court found the statute to be invalid. 16 As THE CHIEF JUSTICE explained, the rule in Lockett is the product of a considerable history reflecting the law's effort to develop a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual. Since the early days of the common law, the legal system has struggled to accommodate these twin objectives. Thus, the common law began by treating all criminal homicides as capital offenses, with a mandatory sentence of death. Later it allowed exceptions, first through an exclusion for those entitled to claim benefit of clergy and then by limiting capital punishment to murders upon "malice prepensed." In this country we attempted to soften the rigor of the system of mandatory death sentences we inherited from England, first by grading murder into different degrees of which only murder of the first degree was a capital offense and then by committing use of the death penalty to the absolute discretion of the jury. By the time of our decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the country had moved so far from a mandatory system that the imposition of capital punishment frequently had become arbitrary and capricious. 17 Beginning with Furman, the Court has attempted to provide standards for a constitutional death penalty that would serve both goals of measured, consistent application and fairness to the accused. Thus, in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the principal opinion held that the danger of an arbitrary and capricious death penalty could be met "by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance." Id., at 195, 96 S.Ct., at 2935. By its requirement that the jury find one of the aggravating circumstances listed in the death penalty statute, and by its direction to the jury to consider "any mitigating circumstances," the Georgia statute properly confined and directed the jury's attention to the circumstances of the particular crime and to "the characteristics of the person who committed the crime. . . ." Id., at 197, 96 S.Ct., at 2936.6 18 Similarly, in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), the plurality held that mandatory death sentencing was not a permissible response to the problem of arbitrary jury discretion. As the history of capital punishment had shown, such an approach to the problem of discretion could not succeed while the Eighth Amendment required that the individual be given his due: "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 2991.7 See Roberts (Harry) v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977); Roberts (Stanislaus) v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). 19 Thus, the rule in Lockett followed from the earlier decisions of the Court and from the Court's insistence that capital punishment be imposed fairly, and with reasonable consistency, or not at all. By requiring that the sentencer be permitted to focus "on the characteristics of the person who committed the crime," Gregg v. Georgia, supra, at 197, 96 S.Ct., at 2936, the rule in Lockett recognizes that "justice . . . requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender." Pennsylvania v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 60, 82 L.Ed. 43 (1937). By holding that the sentencer in capital cases must be permitted to consider any relevant mitigating factor, the rule in Lockett recognizes that a consistency produced by ignoring individual differences is a false consistency. III 20 We now apply the rule in Lockett to the circumstances of this case. The trial judge stated that "in following the law," he could not "consider the fact of this young man's violent background." App. 189. There is no dispute that by "violent background" the trial judge was referring to the mitigating evidence of Eddings' family history.8 From this statement it is clear that the trial judge did not evaluate the evidence in mitigation and find it wanting as a matter of fact; rather he found that as a matter of law he was unable even to consider the evidence. 21 The Court of Criminal Appeals took the same approach. It found that the evidence in mitigation was not relevant because it did not tend to provide a legal excuse from criminal responsibility. Thus the court conceded that Eddings had a "personality disorder," but cast this evidence aside on the basis that "he knew the difference between right and wrong . . . and that is the test of criminal responsibility." 616 P.2d, at 1170. Similarly, the evidence of Eddings' family history was "useful in explaining" his behavior, but it did not "excuse" the behavior. From these statements it appears that the Court of Criminal Appeals also considered only that evidence to be mitigating which would tend to support a legal excuse from criminal liability. 22 We find that the limitations placed by these courts upon the mitigating evidence they would consider violated the rule in Lockett.9 Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence. In this instance, it was as if the trial judge had instructed a jury to disregard the mitigating evidence Eddings proffered on his behalf. The sentencer, and the Court of Criminal Appeals on review, may determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration.10 23 Nor do we doubt that the evidence Eddings offered was relevant mitigating evidence. Eddings was a youth of 16 years at the time of the murder. Evidence of a difficult family history and of emotional disturbance is typically introduced by defendants in mitigation. See McGautha v. California, 402 U.S. 183, 187-188, 193, 91 S.Ct. 1454, 1457, 1460, 28 L.Ed.2d 711 (1971). In some cases, such evidence properly may be given little weight. But when the defendant was 16 years old at the time of the offense there can be no doubt that evidence of a turbulent family history, of beatings by a harsh father, and of severe emotional disturbance is particularly relevant. 24 The trial judge recognized that youth must be considered a relevant mitigating factor. But youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage.11 Our history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults.12 Particularly "during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment" expected of adults. Bellotti v. Baird, 443 U.S. 622, 635, 99 S.Ct. 3035, 3044, 61 L.Ed.2d 797 (1979). 25 Even the normal 16-year-old customarily lacks the maturity of an adult. In this case, Eddings was not a normal 16-year-old; he had been deprived of the care, concern, and paternal attention that children deserve. On the contrary, it is not disputed that he was a juvenile with serious emotional problems, and had been raised in a neglectful, sometimes even violent, family background. In addition, there was testimony that Eddings' mental and emotional development were at a level several years below his chronological age. All of this does not suggest an absence of responsibility for the crime of murder, deliberately committed in this case. Rather, it is to say that just as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered in sentencing. 26 We are not unaware of the extent to which minors engage increasingly in violent crime.13 Nor do we suggest an absence of legal responsibility where crime is committed by a minor. We are concerned here only with the manner of the imposition of the ultimate penalty: the death sentence imposed for the crime of murder upon an emotionally disturbed youth with a disturbed child's immaturity. 27 On remand, the state courts must consider all relevant mitigating evidence and weigh it against the evidence of the aggravating circumstances. We do not weigh the evidence for them. Accordingly, the judgment is reversed to the extent that it sustains the imposition of the death penalty, and the case is remanded for further proceedings not inconsistent with this opinion. 28 So ordered. 29 Justice BRENNAN, concurring. 30 I join the Court's opinion without, however, departing from my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227, 96 S.Ct. 2909, 2950, 49 L.Ed.2d 859 (1976) (dissenting opinion). 31 Justice O'CONNOR, concurring. 32 I write separately to address more fully the reasons why this case must be remanded in light of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), which requires the trial court to consider and weigh all of the mitigating evidence concerning the petitioner's family background and personal history.* 33 Because sentences of death are "qualitatively different" from prison sentences, Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.),this Court has gone to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake. Surely, no less can be required when the defendant is a minor. One example of the measures taken is in Lockett v. Ohio, supra, where a plurality of this Court wrote: 34 "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 factors 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." Id., at 605, 98 S.Ct., at 2965 (opinion of BURGER, C. J.). 35 In order to ensure that the death penalty was not erroneously imposed, the Lockett plurality 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 as a basis for a sentence less than death." Id., at 604, 98 S.Ct., at 2964 (emphasis in original) (footnote omitted). 36 In the present case, of course, the relevant Oklahoma statute permits the defendant to present evidence of any mitigating circumstance. See Okla.Stat., Tit. 21, § 701.10 (1980). Nonetheless, in sentencing the petitioner (which occurred about one month before Lockett was decided), the judge remarked that he could not "in following the law . . . consider the fact of this young man's violent background." App. 189. Although one can reasonably argue that these extemporaneous remarks are of no legal significance, I believe that the reasoning of the plurality opinion in Lockett compels a remand so that we do not "risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty." 438 U.S., at 605, 98 S.Ct., at 2965. 37 I disagree with the suggestion in the dissent that remanding this case may serve no useful purpose. Even though the petitioner had an opportunity to present evidence in mitigation of the crime, it appears that the trial judge believed that he could not consider some of the mitigating evidence in imposing sentence. In any event, we may not speculate as to whether the trial judge and the Court of Criminal Appeals actually considered all of the mitigating factors and found them insufficient to offset the aggravating circumstances, or whether the difference between this Court's opinion and the trial court's treatment of the petitioner's evidence is "purely a matter of semantics," as suggested by the dissent. Woodson and Lockett require us to remove any legitimate basis for finding ambiguity concerning the factors actually considered by the trial court. 38 THE CHIEF JUSTICE may be correct in concluding that the Court's opinion reflects a decision by some Justices that they would not have imposed the death penalty in this case had they sat as the trial judge. See post, at 127. I, however, do not read the Court's opinion either as altering this Court's opinions establishing the constitutionality of the death penalty or as deciding the issue of whether the Constitution permits imposition of the death penalty on an individual who committed a murder at age 16. Rather, by listing in detail some of the circumstances surrounding the petitioner's life, the Court has sought to emphasize the variety of mitigating information that may not have been considered by the trial court in deciding whether to impose the death penalty or some lesser sentence. 39 Chief Justice BURGER, with whom Justice WHITE, Justice BLACKMUN, and Justice REHNQUIST join, dissenting. 40 It is important at the outset to remember—as the Court does not—the narrow question on which we granted certiorari. We took care to limit our consideration to whether the Eighth and Fourteenth Amendments prohibit the imposition of a death sentence on an offender because he was 16 years old in 1977 at the time he committed the offense; review of all other questions raised in the petition for certiorari was denied. 450 U.S. 1040, 101 S.Ct. 1756, 68 L.Ed.2d 237 (1981). Yet the Court today goes beyond the issue on which review was sought—and granted—to decide the case on a point raised for the first time in petitioner's brief to this Court. This claim was neither presented to the Oklahoma courts nor presented to this Court in the petition for certiorari.1 Relying on this "11th-hour" claim, the Court strains to construct a plausible legal theory to support its mandate for the relief granted. 41 * In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), we considered whether Ohio violated the Eighth and Fourteenth Amendments by sentencing Lockett to death under a statute that "narrowly limit[ed] the sentencer's discretion to consider the circumstances of the crime and the record and character of the offender as mitigating factors." Id., at 589, 98 S.Ct., at 2956. The statute at issue, Ohio Rev.Code §§ 2929.03-2929.04(B) (1975), required the trial court to impose the death penalty upon Lockett's conviction for "aggravated murder with specifications,"2 unless it found "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.' " 438 U.S., at 593-594, 98 S.Ct., at 2958-59. It was plain that although guilty of felony homicide under Ohio law, Lockett had played a relatively minor role in a robbery which resulted in a homicide actually perpetrated by the hand of another. Lockett had previously committed no major offenses; in addition, a psychological report described her "prognosis for rehabilitation" as "favorable." Id., at 594, 98 S.Ct., at 2959. However, since she was not found to have acted under duress, did not suffer from "psychosis," and was not "mentally deficient," the sentencing judge concluded that he had " 'no alternative, whether [he] like[d] the law or not' but to impose the death penalty." Ibid. 42 We held in Lockett that the "Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Id., at 604, 98 S.Ct., at 2964 (emphasis in original). We therefore found the Ohio statute flawed, because it did not permit individualized consideration of mitigating circumstances—such as the defendant's comparatively minor role in the offense, lack of intent to kill the victim, or age. Id., at 606-608, 98 S.Ct., at 2965-66. We did not, however, undertake to dictate the weight that a sentencing court must ascribe to the various factors that might be categorized as "mitigating," nor did we in any way suggest that this Court may substitute its sentencing judgment for that of state courts in capital cases. 43 In contrast to the Ohio statute at issue in Lockett, the Oklahoma death penalty statute provides: 44 "In the sentencing proceeding, evidence may be presented as to any mitigating circumstances or as to any of the aggravating circumstances enumerated in this act." Okla.Stat., Tit. 21, § 701.10 (1980) (emphasis added). The statute further provides that 45 "[u]nless at least one of the statutory aggravating circumstances enumerated in this act is [found to exist beyond a reasonable doubt] or if it is found that any such aggravating circumstance is outweighed by the finding of one or more mitigating circumstances, the death penalty shall not be imposed." § 701.11. 46 This provision, of course, instructs the sentencer to weigh the mitigating evidence introduced by a defendant against the aggravating circumstances proved by the State.3 47 The Oklahoma statute thus contains provisions virtually identical to those cited with approval in Lockett, as examples of proper legislation which highlighted the Ohio statute's "constitutional infirmities." 438 U.S., at 606-607, 98 S.Ct., at 2965-2966. Indeed, the Court does not contend that the Oklahoma sentencing provisions are inconsistent with Lockett. Moreover, the Court recognizes that, as mandated by the Oklahoma statute, Eddings was permitted to present "substantial evidence at the [sentencing] hearing of his troubled youth." Ante, at 107.4 48 In its attempt to make out a violation of Lockett, the Court relies entirely on a single sentence of the trial court's opinion delivered from the bench at the close of the sentencing hearing. After discussing the aggravated nature of petitioner's offense, and noting that he had "given very serious consideration to the youth of the Defendant when this particular crime was committed," the trial judge said that he could not "be persuaded entirely by the . . . fact that the youth was sixteen years old when this heinous crime was committed. Nor can the Court in following the law, in my opinion, consider the fact of this young man's violent background." App. 189. 49 From this statement, the Court concludes "it is clear that the trial judge did not evaluate the evidence in mitigation and find it wanting as a matter of fact, rather he found that as a matter of law he was unable even to consider the evidence." Ante, at 113. This is simply not a correct characterization of the sentencing judge's action. 50 In its parsing of the trial court's oral statement, the Court ignores the fact that the judge was delivering his opinion extemporaneously from the bench, and could not be expected to frame each utterance with the specificity and precision that might be expected of a written opinion or statute. Extemporaneous courtroom statements are not often models of clarity. Nor does the Court give any weight to the fact that the trial court had spent considerable time listening to the testimony of a probation officer and various mental health professionals who described Eddings' personality and family history—an obviously meaningless exercise if, as the Court asserts, the judge believed he was barred "as a matter of law" from "considering" their testimony. Yet even examined in isolation, the trial court's statement is at best ambiguous;5 it can just as easily be read to say that, while the court had taken account of Eddings' unfortunate childhood, it did not consider that either his youth or his family background was sufficient to offset the aggravating circumstances that the evidence revealed. Certainly nothing in Lockett would preclude the court from making such a determination. 51 The Oklahoma Court of Criminal Appeals independently examined the evidence of "aggravating" and "mitigating" factors presented at Eddings' sentencing hearing. 616 P.2d 1159 (1980). After reviewing the testimony concerning Eddings' personality and family background, and after referring to the trial court's discussion of mitigating circumstances, it stated that while Eddings' "family history is useful in explaining why he behaved the way he did, . . . it does not excuse his behavior." Id., at 1170 (emphasis added). From this the Court concludes that "the Court of Criminal Appeals also considered only that evidence to be mitigating which would tend to support a legal excuse from criminal liability." Ante, at 113.6 However, there is no reason to read that court's statements as reflecting anything more than a conclusion that Eddings' background was not a sufficiently mitigating factor to tip the scales, given the aggravating circumstances, including Eddings' statements immediately before the killing.7 The Court of Criminal Appeals most assuredly did not, as the Court's opinion suggests, hold that this "evidence in mitigation was not relevant," see ibid.; indeed, had the Court of Criminal Appeals thought the evidence irrelevant, it is unlikely that it would have spent several paragraphs summarizing it. The Court's opinion offers no reasonable explanation for its assumption that the Court of Criminal Appeals considered itself bound by some unstated legal principle not to "consider" Eddings' background. 52 To be sure, neither the Court of Criminal Appeals nor the trial court labeled Eddings' family background and personality disturbance as "mitigating factors." It is plain to me, however, that this was purely a matter of semantics associated with the rational belief that "evidence in mitigation" must rise to a certain level of persuasiveness before it can be said to constitute a "mitigating circumstance." In contrast, the Court seems to require that any potentially mitigating evidence be described as a "mitigating factor"—regardless of its weight; the insubstantiality of the evidence is simply to be a factor in the process of weighing the evidence against aggravating circumstances. Yet if this is all the Court's opinion stands for, it provides scant support for the result reached. For it is clearly the choice of the Oklahoma courts—a choice not inconsistent with Lockett or any other decision of this Court—to accord relatively little weight to Eddings' family background and emotional problems as balanced against the circumstances of his crime and his potential for future dangerousness.8 II 53 It can never be less than the most painful of our duties to pass on capital cases, and the more so in a case such as this one. However, there comes a time in every case when a court must "bite the bullet." 54 Whether the Court's remand will serve any useful purpose remains to be seen, for petitioner has already been given an opportunity to introduce whatever evidence he considered relevant to the sentencing determination. Two Oklahoma courts have weighed that evidence and found it insufficient to offset the aggravating circumstances shown by the State. The Court's opinion makes clear that some Justices who join it would not have imposed the death penalty had they sat as the sentencing authority, see, e.g., ante, at 115-116. Indeed, I am not sure I would have done so. But the Constitution does not authorize us to determine whether sentences imposed by state courts are sentences we consider "appropriate"; our only authority is to decide whether they are constitutional under the Eighth Amendment. The Court stops far short of suggesting that there is any constitutional proscription against imposition of the death penalty on a person who was under age 18 when the murder was committed. In the last analysis, the Court is forced to conclude that it is "the state courts [which] must consider [petitioner's mitigating evidence] and weigh it against the evidence of the aggravating circumstances. We do not weigh the evidence for them." Ante, at 117. 55 Because the sentencing proceedings in this case were in no sense inconsistent with Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), I would decide the sole issue on which we granted certiorari, and affirm the judgment. 1 There was evidence that immediately after the shooting Eddings said: "I would rather have shot an Officer than go back to where I live." App. 93. 2 The psychiatrist suggested that, at the time of the murder, Eddings was in his own mind shooting his stepfather—a policeman who had been married to his mother for a brief period when Eddings was seven. The psychiatrist stated: "I think that given the circumstances and the facts of his life, and the facts of his arrested development, he acted as a seven year old seeking revenge and rebellion; and the act—he did pull the trigger, he did kill someone, but I don't even think he knew that he was doing it." Id., at 172. 3 The trial judge found first that the crime was "heinous, atrocious, and cruel" because "designed to inflict a high degree of pain . . . in utter indifference to the rights of Patrolman Crabtree." Id., at 187. Second, the judge found that the crime was "committed for the purpose of avoiding or preventing a lawful arrest or prosecution." Id., at 187-188. The evidence was sufficient to indicate that at the time of the offense Eddings did not wish to be returned to Missouri and that in stopping the car the officer's intent was to make a lawful arrest. Finally, the trial judge found that Eddings posed a continuing threat of violence to society. There was evidence that at one point on the day of the murder, after Eddings had been taken to the county jail, he told two officers that "if he was loose . . . he would shoot" them all. Id., at 77. There was also evidence that at another time, when an officer refused to turn off the light in Eddings' cell, Eddings became angry and threatened the officer: "Now I have shot one of you people, and I'll get you too if you don't turn this light out." Id., at 103. Based on these two "spontaneous utterances," id., at 188, the trial judge found a strong likelihood that Eddings would again commit a criminal act of violence if released. 4 We understand the Court of Criminal Appeals to hold that the murder of a police officer in the performance of his duties is "heinous, atrocious, or cruel" under the Oklahoma statute. See Roberts v. Louisiana, 431 U.S. 633, 636, 97 S.Ct. 1993, 1995, 52 L.Ed.2d 637 (1977). However, we doubt that the trial judge's understanding and application of this aggravating circumstance conformed to that degree of certainty required by our decision in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). See n. 3, supra. 5 Because we decide this case on the basis of Lockett v. Ohio, we do not reach the question of whether—in light of contemporary standards—the Eighth Amendment forbids the execution of a defendant who was 16 at the time of the offense. Cf. Bell v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978). 6 "[T]he jury's attention is focused on the characteristics of the person who committed the crime: . . . Are there any special facts about this defendant that mitigate against imposing capital punishment (e.g., his youth, the extent of his cooperation with the police, his emotional state at the time of the crime)." 428 U.S., at 197, 96 S.Ct., at 2936. 7 "A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings. . . ." 428 U.S., at 304, 96 S.Ct., at 2991. 8 Brief for Respondent 55 ("the inference that can be drawn is that the court did not consider petitioner's juvenile record and family life to be a mitigating circumstance"); Tr. of Oral Arg. 36 ("the trial court did not consider the fact of his family background as a mitigating circumstance. . . . [T]he violent background, which I assume he meant was . . . [that Eddings] was subject to some slapping around and some beating by his father") (argument of respondent). 9 Eddings argued to the Court of Criminal Appeals that imposition of the death penalty in the particular circumstances of his case, and in light of the mitigating factors present, was excessive punishment under the Eighth Amendment. But he did not specifically argue that the trial judge erred in refusing to consider relevant mitigating circumstances in the process of sentencing. In rejecting his claim of excessive punishment, the court examined the aggravating and mitigating circumstances and held that Eddings' family history and emotional disorder were not mitigating circumstances that ought to be weighed in the balance. The court's holding that these factors were irrelevant to an inquiry into excessiveness was also a holding that they need not have been considered by the sentencer in imposing capital punishment. Similarly, Eddings' argument in his petition for certiorari that imposition of the death penalty was excessive on the facts of this case comprises the argument that the sentencer erred in refusing to consider relevant mitigating circumstances proffered by him at the sentencing hearing. In short, although neither the opinion of the Court of Criminal Appeals nor Eddings' petition for certiorari spoke to our decision in Lockett by name, the question of whether the decisions below were consistent with our decision in Lockett is properly before us. Our jurisdiction does not depend on citation to book and verse. See, e.g., New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67, 49 S.Ct. 61, 63, 73 L.Ed. 184 (1928). Although Eddings' petition for certiorari did not expressly present the Lockett issue, his brief in this Court argued it, and the State responded to the argument. Brief for Petitioner 64-67; Brief for Respondent 55-57. The dissenting opinion of THE CHIEF JUSTICE, post, at 120, n. 1, states that the courts below were not afforded the opportunity to consider this issue. The fact is, however, that in his petition to the Court of Criminal Appeals for a rehearing, Eddings specifically presented the issue and at some considerable length. See Petition for Re-Hearing and Supporting Brief in No. C-78-325, p. 10 ("This Court, by its interpretation of mitigating circumstances, has effectively limited the scope of mitigation and that limitation renders the Oklahoma death penalty statute unconstitutional"). The Court of Criminal Appeals denied the petition, stating that it had given it full consideration and had been "fully advised in the premises." See Rule 1.18, Rules of the Court of Criminal Appeals (1980) (court will entertain new arguments upon a petition for rehearing). Cf. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 476, 95 S.Ct. 1029, 1036, 43 L.Ed.2d 328 (1975). See also Wood v. Georgia, 450 U.S. 261, 265, n. 5, 101 S.Ct. 1097, 1100, n. 5, 67 L.Ed.2d 220 (1981); Beck v. Alabama, 447 U.S. 625, 631, n. 6, 100 S.Ct. 2382, 2386, n. 6, 65 L.Ed.2d 392 (1980); Vachon v. New Hampshire, 414 U.S. 478, 479, n. 3, 94 S.Ct. 664, 665, n. 3, 38 L.Ed.2d 666 (1974). 10 We note that the Oklahoma death penalty statute permits the defendant to present evidence "as to any mitigating circumstances." Okla.Stat., Tit. 21, § 701.10 (1980). Lockett requires the sentencer to listen. 11 "Adolescents everywhere, from every walk of life, are often dangerous to themselves and to others." The President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Juvenile Delinquency and Youth Crime 41 (1967). "[A]dolescents, particularly in the early and middle teen years, are more vulnerable, more impulsive, and less self-disciplined than adults. Crimes committed by youths may be just as harmful to victims as those committed by older persons, but they deserve less punishment because adolescents may have less capacity to control their conduct and to think in long-range terms than adults. Moreover, youth crime as such is not exclusively the offender's fault; offenses by the young also represent a failure of family, school, and the social system, which share responsibility for the development of America's youth." Twentieth Century Fund Task Force on Sentencing Policy Toward Young Offenders, Confronting Youth Crime 7 (1978). 12 As Justice Frankfurter stated, "[c]hildren have a very special place in life which law should reflect." May v. Anderson, 345 U.S. 528, 536, 73 S.Ct. 840, 844, 97 L.Ed. 1221 (1953) (concurring opinion). And indeed the law does reflect this special place. Every State in the country makes some separate provision for juvenile offenders. See In re Gault, 387 U.S. 1, 14, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967). 13 See, e.g., National Advisory Committee on Criminal Justice Standards and Goals, Task Force Report on Juvenile Justice and Delinquency Prevention 3 (1976). * Despite THE CHIEF JUSTICE's argument that we may not consider the Lockett issue because it was never fairly presented to the court below, there is precedent for this Court to consider the merits of the issue. In Wood v. Georgia, 450 U.S. 261, 265, n. 5, 101 S.Ct. 1097, 1100 n. 5, 67 L.Ed.2d 220 (1981), this Court wrote: "Even if one considers that the conflict-of-interest question was not technically raised below, there is ample support for a remand required in the interests of justice. See 28 U.S.C. § 2106 (authorizing this Court to 'require such further proceedings to be had as may be just under the circumstances')." Because the trial court's failure to consider all of the mitigating evidence risks erroneous imposition of the death sentence, in plain violation of Lockett, it is our duty to remand this case for resentencing. 1 The Court struggles to demonstrate that "the question of whether the decisions below were consistent with our decision in Lockett is properly before us." Ante, at 113-114, n. 9. It argues that petitioner's "Lockett claim" was somehow inherent in his general assertion that the death penalty was "excessive." However, it is obvious that petitioner not only failed to present to this Court the question which the Court now addresses, but also never "fairly presented" the Lockett argument to the state courts so as to have afforded them the first "opportunity to apply controlling legal principles to the facts bearing upon [his] constitutional claim." Picard v. Connor, 404 U.S. 270, 275-277, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971). Indeed, petitioner concedes as much, admitting that the "Lockett error was not enumerated or argued on appeal to the Oklahoma Court of Criminal Appeals. . . ." Brief for Petitioner 64. 2 In that case the evidence showed that while Lockett waited in a "get-away" car, her three companions robbed a store; during the robbery, the proprietor was fatally wounded. Lockett was charged with aggravated murder with two "specifications" of "aggravating circumstances": (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." See Ohio Rev.Code § 2929.04(A) (1975). 3 It is ironic that in his petition for certiorari filed with the Oklahoma Court of Criminal Appeals, petitioner asserted that the Oklahoma sentencing scheme was constitutionally deficient, because "[t]he mitigating circumstances which may be considered are not statutorily defined or limited " (emphasis added). 4 Although I think it is immaterial to a correct decision of this case, it is worth noting that the Court overstates and oversimplifies the evidence presented by Eddings at the sentencing hearing. For example, it twice characterizes the testimony as indicating that, at the time of the crime, Eddings' "mental and emotional development were at a level several years below his age." Ante, at 107, 116. Dr. Dietsche, a psychologist, testified that if forced to extrapolate from the Wechsler Adult Intelligence Scale he would place petitioner's "mental age" at about 14 years, 6 months; however, he then said that this mental age would have "no meaning" since "the mental age concepts break down . . . between fourteen to sixteen years of age." He went on to state: "My opinion is that [Eddings] has the intelligence of an adult." App. 134-136 (emphasis added). Describing a single interview with petitioner while he was awaiting trial on murder charges, Dr. Rettig, a sociologist, said that petitioner's "responses appeared to me to be several years below his chronological age"; he "qualif[ied]" this answer, however, by noting that petitioner was "under a great deal of constraint in the atmosphere in which I saw him." Id., at 149. Finally, Dr. Gagliano, a psychiatrist, opined on the basis of a one-hour interview—during which petitioner's attorney was present and refused to allow questioning about petitioner's "mental status" on the day of the shooting, id., at 177—that at the time petitioner pulled the trigger, "he acted as a seven year old seeking revenge and rebellion" against his stepfather, a policeman. Id., at 172-173. Dr. Gagliano was also willing to state categorically, on the basis of this single interview, and without reference to the results of the psychological testing of Eddings, id., at 174, that Eddings was "preordained" to commit the murder from the time his parents were divorced, when he was five. Id., at 179-180. This sort of "determinist" approach is rejected by an overwhelming majority of psychiatrists. 5 It is not even clear what the trial court meant by Eddings' "violent background." For example, Eddings' probation officer testified that Eddings had "problems with fighting" while in school, and had once been charged with "Assault with intent to do great bodily harm." Id., at 106-107. The State seems to concede, however, that the court was probably referring, at least in part, to Eddings' family history. See Brief for Respondent 55 ("the inference that can be drawn is that the court did not consider petitioner's juvenile record and family life to be a mitigating circumstance") (emphasis added). But cf. Tr. of Oral Arg. 35 ("the remark is ambiguous. It could be interpreted to mean that [the trial court] was not going to consider the juvenile's previous juvenile record in Missouri, which was extensive . . ."). 6 On the other hand, the Court's opinion concedes that petitioner's youth was given serious consideration as a "mitigating circumstance," although his age at the time of the offense would not "tend to support a legal excuse from criminal responsibility." 7 When Eddings' companions informed him that the officer's patrol car was approaching, Eddings responded that if the "mother . . . pig tried to stop him he was going to blow him away." App. 66. 8 Nor is this choice necessarily an unreasonable one. As the Court notes, "[e]vidence of a difficult family history and of emotional disturbance is typically introduced by defendants in mitigation." Ante, at 115. One might even be surprised if a person capable of a brutal and unprovoked killing of a police officer did not suffer from some sort of "personality disorder." Indeed, Dr. Dietsche, who testified that Eddings had a "sociopathic or antisocial personality," see ante, at 107, estimated that 91% "of your criminal element" would test as sociopathic or antisocial. App. 136. Dr. Dietsche defined "antisocial personalities" as individuals without "the usual type of companions" or "loyalties," who are "[f]requently . . . selfish, . . . very impulsive," showing "little in the line of responsibility" or concern "for the needs or wants of others," and "hav[ing] little in the line of guilt or remorse." Id., at 137-138. Although the Court describes Dietsche's testimony as indicating that "approximately 30% of youths suffering from such a disorder grew out of it as they aged," ante, at 107, Dietsche was in fact describing a study which he thought had subsequently been discredited. App. 139-141. Even that study, however, concluded that most of those who "grew out of" the disorder by the age of 35 or 40 were "more of a conartist type" and "not . . . the assaultive type." Ibid. A more recent study estimated that only 20% of sociopathic persons were "treatable," id., at 141; in this study, only 9 of 255 initial participants were successfully treated, after "literally . . . thousands of hours of therapy." Id., at 142. Thus, characterization of Eddings as a "sociopath" may connote little more than that he is egocentric, concerned only with his own desires and unremorseful, has a propensity for criminal conduct, and is unlikely to respond well to conventional psychiatric treatment—hardly significant "mitigating" factors. See Blocker v. United States, 110 U.S.App.D.C. 41, 48-49, and nn. 11, 12, 288 F.2d 853, 860-861, and nn. 11, 12 (1961) (Burger, J., concurring in result). While the Court speaks of Eddings' "severe emotional disturbance," ante, at 115; see also ante, at 116, it appears to be referring primarily to the testimony that Eddings was a sociopath, and to Dr. Gagliano's rather fantastic speculation concerning Eddings' dissociation at the time of the crime, see n. 4, supra. The Court's opinion exemplifies the proposition that the very occurrence of the crime functions as a powerful impetus to search for a theory to explain it. See Szasz, Psychiatry, Ethics, and the Criminal Law, 58 Colum.L.Rev. 183, 190-191 (1958).

01

455 U.S. 209 102 S.Ct. 940 71 L.Ed.2d 78 Harold J. SMITH, Superintendent, Attica Correctional Facilityv.William R. PHILLIPS. No. 80-1082. Argued Nov. 9, 1981. Decided Jan. 25, 1982. Syllabus After being convicted of murder at a jury trial in a New York court, respondent moved to vacate his conviction on the ground that a juror in his case submitted during the trial an application for employment as an investigator in the District Attorney's Office, and that the prosecuting attorneys, upon being informed of the juror's application, withheld the information from the trial court and respondent's defense counsel until after the trial. At a hearing on the motion before the same judge who had presided at the trial, the motion was denied, the judge finding "beyond a reasonable doubt" that the events giving rise to the motion did not influence the verdict. The Appellate Division of the New York Supreme Court affirmed the conviction, and the New York Court of Appeals denied leave to appeal. Subsequently, respondent sought habeas corpus relief in Federal District Court, alleging that he had been denied due process of law under the Fourteenth Amendment by the conduct of the juror in question. While finding insufficient evidence to demonstrate that the juror was actually biased, the District Court nevertheless imputed bias to him and, accordingly, ordered respondent released unless the State granted him a new trial. The United States Court of Appeals, without considering whether the juror was actually or impliedly biased, affirmed on the ground that the prosecutors' failure to disclose their knowledge about the juror denied respondent due process. Held: Respondent was not denied due process of law either by the juror's conduct or by the prosecutors' failure to disclose the juror's job application. Pp. 215-221. (a) Due process does not require a new trial every time a juror has been placed in a potentially compromising situation. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. Such determinations may properly be made at a hearing like that held in this case. Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654. Moreover, this being a federal habeas action, the state trial judge's findings are presumptively correct under 28 U.S.C. § 2254(d). Federal courts in such proceedings must not disturb the state courts' findings unless the federal habeas court articulates some basis for disarming such findings of the statutory presumption that they are correct and may be overcome only by convincing evidence. Here, neither the District Court nor the Court of Appeals took issue with the state trial judge's findings. Pp. 215-218. (b) The touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor. Here, the prosecutors' failure to disclose the juror's job application, although requiring a post-trial hearing on juror bias, did not deprive respondent of the fair trial guaranteed by the Due Process Clause of the Fourteenth Amendment. Pp. 218-221. (c) Absent a violation of some right guaranteed respondent by the Fourteenth Amendment, it was error for the lower courts to order a new trial. Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension. P. 221. 632 F.2d 1019, reversed. Robert M. Pitler, New York City, for petitioner. William M. Kunstler, New York City, for respondent. Justice REHNQUIST delivered the opinion of the Court. 1 Respondent was convicted in November 1974 by a New York state-court jury on two counts of murder and one count of attempted murder. After trial, respondent moved to vacate his conviction pursuant to § 330.30 of the N.Y.Crim.Proc. Law (McKinney 1971) (CPL),1 and a hearing on his motion was held pursuant to CPL § 330.40.2 The hearing was held before the justice who presided at respondent's trial, and the motion to vacate was denied by him in an opinion concluding "beyond a reasonable doubt" that the events giving rise to the motion did not influence the verdict. People v. Phillips, 87 Misc.2d 613, 614, 630, 384 N.Y.S.2d 906, 907-908, 918 (1975). The Appellate Division of the Supreme Court, First Judicial Department, affirmed the conviction without opinion. 52 A.D.2d 758, 384 N.Y.S.2d 715 (1976). The New York Court of Appeals denied leave to appeal. 39 N.Y.2d 949, 352 N.E.2d 894, 386 N.Y.S.2d 1039 (1976). 2 Some four years after the denial of leave to appeal by the Court of Appeals, respondent sought federal habeas relief in the United States District Court for the Southern District of New York on the same ground which had been asserted in the state post-trial hearing. The District Court granted the writ, 485 F.Supp. 1365 (1980), and the United States Court of Appeals for the Second Circuit affirmed on a somewhat different ground. 632 F.2d 1019 (1980). We granted certiorari to consider the important questions of federal constitutional law in relation to federal habeas proceedings raised by these decisions. 450 U.S. 909, 101 S.Ct. 1345, 67 L.Ed.2d 332 (1981). We now reverse. 3 * A. 4 Respondent's original motion to vacate his conviction was based on the fact that a juror in respondent's case, one John Dana Smith, submitted during the trial an application for employment as a major felony investigator in the District Attorney's Office.3 Smith had learned of the position from a friend who had contacts within the office and who had inquired on Smith's behalf without mentioning Smith's name or the fact that he was a juror in respondent's trial. When Smith's application was received by the office, his name was placed on a list of applicants but he was not then contacted and was not known by the office to be a juror in respondent's trial. 5 During later inquiry about the status of Smith's application, the friend mentioned that Smith was a juror in respondent's case. The attorney to whom the friend disclosed this fact promptly informed his superior, and his superior in turn informed the Assistant District Attorney in charge of hiring investigators. The following day, more than one week before the end of respondent's trial, the assistant informed the two attorneys actually prosecuting respondent that one of the jurors had applied to the office for employment as an investigator. 6 The two prosecuting attorneys conferred about the application but concluded that, in view of Smith's statements during voir dire,4 there was no need to inform the trial court or defense counsel of the application. They did instruct attorneys in the office not to contact Smith until after the trial had ended, and took steps to insure that they would learn no information about Smith that had not been revealed during voir dire. When the jury retired to deliberate on November 20th, three alternate jurors were available to substitute for Smith, and neither the trial court nor the defense counsel knew of his application. The jury returned its verdict on November 21st. 7 The District Attorney first learned of Smith's application on December 4th. Five days later, after an investigation to verify the information, he informed the trial court and defense counsel of the application and the fact that its existence was known to attorneys in his office at some time before the conclusion of the trial. Respondent's attorney then moved to set aside the verdict. 8 At the hearing before the trial judge, Justice Harold Birns, the prosecuting attorneys explained their decision not to disclose the application and Smith explained that he had seen nothing improper in submitting the application during the trial. Justice Birns, "[f]rom all the evidence adduced" at the hearing, 87 Misc.2d, at 621, 384 N.Y.S.2d, at 912, found that "Smith's letter was indeed an indiscretion" but that it "in no way reflected a premature conclusion as to the [respondent's] guilt, or prejudice against the [respondent], or an inability to consider the guilt or innocence of the [respondent] solely on the evidence." Id., at 627, 384 N.Y.S.2d, at 915. With respect to the conduct of the prosecuting attorneys, Justice Birns found "no evidence" suggesting "a sinister or dishonest motive with respect to Mr. Smith's letter of application." Id., at 618-619, 384 N.Y.S.2d, at 910. B 9 In his application for federal habeas relief, respondent contended that he had been denied due process of law under the Fourteenth Amendment to the United States Constitution by Smith's conduct. The District Court found insufficient evidence to demonstrate that Smith was actually biased. 485 F.Supp., at 1371. Nonetheless, the court imputed bias to Smith because "the average man in Smith's position would believe that the verdict of the jury would directly affect the evaluation of his job application." Id., at 1371-1372. Accordingly, the court ordered respondent released unless the State granted him a new trial within 90 days. 10 The United States Court of Appeals for the Second Circuit affirmed by a divided vote. The court noted that "it is at best difficult and perhaps impossible to learn from a juror's own testimony after the verdict whether he was in fact 'impartial,' " but the court did not consider whether Smith was actually or impliedly biased. 632 F.2d, at 1022. Rather, the Court of Appeals affirmed respondent's release simply because "the failure of the prosecutors to disclose their knowledge denied [respondent] due process." Ibid. The court explained: "To condone the withholding by the prosecutor of information casting substantial doubt as to the impartiality of a juror, such as the fact that he has applied to the prosecutor for employment, would not be fair to a defendant and would ill serve to maintain public confidence in the judicial process." Id., at 1023.5 II 11 In argument before this Court, respondent has relied primarily on reasoning adopted by the District Court.6 He contends that a court cannot possibly ascertain the impartiality of a juror by relying solely upon the testimony of the juror in question. Given the human propensity for self-justification, respondent argues, the law must impute bias to jurors in Smith's position. We disagree. 12 This Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias. For example, in Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), a juror in a federal criminal trial was approached by someone offering money in exchange for a favorable verdict. An FBI agent was assigned to investigate the attempted bribe, and the agent's report was reviewed by the trial judge and the prosecutor without disclosure to defense counsel. When they learned of the incident after trial, the defense attorneys moved that the verdict be vacated, alleging that "they would have moved for a mistrial and requested that the juror in question be replaced by an alternate juror" had the incident been disclosed to them during trial. Id., at 229, 74 S.Ct., at 451. 13 This Court recognized the seriousness not only of the attempted bribe, which it characterized as "presumptively prejudicial," but also of the undisclosed investigation, which was "bound to impress the juror and [was] very apt to do so unduly." Ibid. Despite this recognition, and a conviction that "[t]he integrity of jury proceedings must not be jeopardized by unauthorized invasions," ibid., the Court did not require a new trial like that ordered in this case. Rather, the Court instructed the trial judge to "determine the circumstances, the impact thereof upon the juror, and whether or not [they were] prejudicial, in a hearing with all interested parties permitted to participate." Id., at 230, 74 S.Ct., at 451 (emphasis added). In other words, the Court ordered precisely the remedy which was accorded by Justice Birns in this case. 14 Even before the decision in Remmer, this Court confronted allegations of implied juror bias in Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734 (1950). Dennis was convicted of criminal contempt for failure to appear before the Committee on UnAmerican Activities of the House of Representatives. He argued that the jury which convicted him, composed primarily of employees of the United States Government, was inherently biased because such employees were subject to Executive Order No. 9835, 3 CFR 627 (1943-1948 Comp.), which provided for their discharge upon reasonable grounds for belief that they were disloyal to the Government. Dennis contended that such employees would not risk the charge of disloyalty or the termination of their employment which might result from a vote for acquittal. The Court rejected this claim of implied bias, noting that Dennis was "free to show the existence of actual bias" but had failed to do so. 339 U.S., at 167, 70 S.Ct., at 521. The Court thus concluded: "A holding of implied bias to disqualify jurors because of their relationship with the Government is no longer permissible. . . . Preservation of the opportunity to prove actual bias is a guarantee of a defendant's right to an impartial jury." Id., at 171-172, 70 S.Ct., at 523. See also Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187 (1948); United States v. Wood, 299 U.S. 123, 57 S.Ct. 177, 81 L.Ed. 78 (1936). 15 Our decision last Term in Chandler v. Florida, 449 U.S. 560, 101 S.Ct. 802, 66 L.Ed.2d 740 (1981), also treated a claim of implied juror bias. Appellants in Chandler were convicted of various theft crimes at a jury trial which was partially televised under a new Canon of Judicial Ethics promulgated by the Florida Supreme Court. They claimed that the unusual publicity and sensational courtroom atmosphere created by televising the proceedings would influence the jurors and preclude a fair trial. Consistent with our previous decisions, we held that "the appropriate safeguard against such prejudice is the defendant's right to demonstrate that the media's coverage of his case—be it printed or broadcast compromised the ability of the particular jury that heard the case to adjudicate fairly." Id., at 575, 101 S.Ct., at 810. Because the appellants did "not [attempt] to show with any specificity that the presence of cameras impaired the ability of the jurors to decide the case on only the evidence before them," we refused to set aside their conviction. Id., at 581, 101 S.Ct., at 813. 16 These cases demonstrate that due process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable. The safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. Such determinations may properly be made at a hearing like that ordered in Remmer and held in this case.7 The District Court and the Court of Appeals disregarded this doctrine: they held that a post-trial hearing comporting with our decisions in Remmer and other cases prosecuted in the federal courts was constitutionally insufficient in a state court under the Due Process Clause of the Fourteenth Amendment. It seems to us to follow "as the night the day" that if in the federal system a post-trial hearing such as that conducted here is sufficient to decide allegations of juror partiality, the Due Process Clause of the Fourteenth Amendment cannot possibly require more of a state court system.8 17 Of equal importance, this case is a federal habeas action in which Justice Birns' findings are presumptively correct under 28 U.S.C. § 2254(d). We held last Term that federal courts in such proceedings must not disturb the findings of state courts unless the federal habeas court articulates some basis for disarming such findings of the statutory presumption that they are correct and may be overcome only by convincing evidence. Sumner v. Mata, 449 U.S. 539, 551, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981). Here neither the District Court nor the Court of Appeals took issue with the findings of Justice Birns. III 18 As already noted, the Court of Appeals did not rely upon the District Court's imputation of bias. Indeed, it did not even reach the question of juror bias, holding instead that the prosecutors' failure to disclose Smith's application, without more, violated respondent's right to due process of law. Respondent contends that the Court of Appeals thereby correctly preserved "the appearance of justice." Brief for Respondent 7. This contention, too, runs contrary to our decided cases. 19 Past decisions of this Court demonstrate that the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for example, the prosecutor failed to disclose an admission by a participant in the murder which corroborated the defendant's version of the crime. The Court held that a prosecutor's suppression of requested evidence "violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id., at 87, 83 S.Ct., at 1196. Applying this standard, the Court found the undisclosed admission to be relevant to punishment and thus ordered that the defendant be resentenced. Since the admission was not material to guilt, however, the Court concluded that the trial itself complied with the requirements of due process despite the prosecutor's wrongful suppression.9 The Court thus recognized that the aim of due process "is not punishment of society for the misdeeds of the prosecutor but avoidance of an unfair trial to the accused." Ibid. 20 This principle was reaffirmed in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). There, we held that a prosecutor must disclose unrequested evidence which would create a reasonable doubt of guilt that did not otherwise exist. Consistent with Brady, we focused not upon the prosecutor's failure to disclose, but upon the effect of nondisclosure on the trial: 21 "Nor do we believe the constitutional obligation [to disclose unrequested information] is measured by the moral culpability, or willfulness, of the prosecutor. If evidence highly probative of innocence is in his file, he should be presumed to recognize its significance even if he has actually overlooked it. Conversely, if evidence actually has no probative significance at all, no purpose would be served by requiring a new trial simply because an inept prosecutor incorrectly believed he was suppressing a fact that would be vital to the defense. If the suppression of the evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor." 427 U.S., at 110, 96 S.Ct., at 2400 (footnote and citation omitted).10 22 In light of this principle, it is evident that the Court of Appeals erred when it concluded that prosecutorial misconduct alone requires a new trial. We do not condone the conduct of the prosecutors in this case. Nonetheless, as demonstrated in Part II of this opinion, Smith's conduct did not impair his ability to render an impartial verdict. The trial judge expressly so found. 87 Misc.2d, at 627, 384 N.Y.S.2d, at 915. Therefore, the prosecutors' failure to disclose Smith's job application, although requiring a post-trial hearing on juror bias, did not deprive respondent of the fair trial guaranteed by the Due Process Clause. IV 23 A federally issued writ of habeas corpus, of course, reaches only convictions obtained in violation of some provision of the United States Constitution. As we said in Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973): 24 "Before a federal court may overturn a conviction resulting from a state trial . . . it must be established not merely that the [State's action] is undesirable, erroneous, or even 'universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." 25 Absent such a constitutional violation, it was error for the lower courts in this case to order a new trial. Even if the Court of Appeals believed, as the respondent contends, that prosecutorial misbehavior would "reign unchecked" unless a new trial was ordered, it had no authority to act as it did. Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension. Chandler v. Florida, 449 U.S., at 570, 582-583, 101 S.Ct., at 807, 813-814; Cupp v. Naughten, supra, 414 U.S. at 146, 94 S.Ct., at 400. No such wrongs occurred here. Accordingly, the judgment of the Court of Appeals is 26 Reversed. 27 Justice O'CONNOR, concurring. 28 I concur in the Court's opinion, but write separately to express my view that the opinion does not foreclose the use of "implied bias" in appropriate circumstances. 29 * Determining whether a juror is biased or has prejudged a case is difficult, partly because the juror may have an interest in concealing his own bias and partly because the juror may be unaware of it. The problem may be compounded when a charge of bias arises from juror misconduct, and not simply from attempts of third parties to influence a juror. 30 Nevertheless, I believe that in most instances a postconviction hearing will be adequate to determine whether a juror is biased. A hearing permits counsel to probe the juror's memory, his reasons for acting as he did, and his understanding of the consequences of his actions. A hearing also permits the trial judge to observe the juror's demeanor under cross-examination and to evaluate his answers in light of the particular circumstances of the case. 31 I am concerned, however, that in certain instances a hearing may be inadequate for uncovering a juror's biases, leaving serious question whether the trial court had subjected the defendant to manifestly unjust procedures resulting in a miscarriage of justice. While each case must turn on its own facts, there are some extreme situations that would justify a finding of implied bias. Some examples might include a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction. Whether or not the state proceedings result in a finding of "no bias," the Sixth Amendment right to an impartial jury should not allow a verdict to stand under such circumstances.* II 32 None of our previous cases preclude the use of the conclusive presumption of implied bias in appropriate circumstances. Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), on which the Court heavily relies, involved not juror misconduct, but the misconduct of a third party who attempted to bribe a juror. Under those circumstances, where the juror has not been accused of misconduct or has no actual stake in the outcome of the trial, and thus has no significant incentive to shield his biases, a postconviction hearing could adequately determine whether or not the juror was biased. In Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734 (1950), the Court rejected a claim that a juror's employment with the Federal Government was a ground to find implied bias, but did not foreclose a finding of implied bias in more serious situations. Justice Reed, who concurred in the Court's opinion, wrote that he read "the Court's decision to mean that Government employees may be barred for implied bias when circumstances are properly brought to the court's attention which convince the court that Government employees would not be suitable jurors in a particular case." Id., at 172-173, 70 S.Ct., at 523-524. 33 Moreover, this Court has used implied bias to reverse a conviction. In Leonard v. United States, 378 U.S. 544, 84 S.Ct. 1696, 12 L.Ed.2d 1028 (1964) (per curiam), the Court held that prospective jurors who had heard the trial court announce the defendant's guilty verdict in the first trial should be automatically disqualified from sitting on a second trial on similar charges. III 34 Because there may be circumstances in which a postconviction hearing will not be adequate to remedy a charge of juror bias, it is important for the Court to retain the doctrine of implied bias to preserve Sixth Amendment rights. I read the Court's opinion as not foreclosing the use of implied bias in appropriate situations, and, therefore, I concur. 35 Justice MARSHALL, with whom Justice BRENNAN and Justice STEVENS join, dissenting. 36 Juror John Smith vigorously pursued employment with the office of the prosecutor throughout the course of his jury service in respondent's state criminal trial. The prosecutors learned of Smith's efforts during the trial, but improperly failed to disclose this information until after the jury had returned a verdict of guilty against respondent. The state court conducted a post-trial evidentiary hearing and determined that the juror was not actually biased. Thus, it ruled that respondent was not prejudiced, and refused to set aside the conviction. Respondent subsequently filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York, claiming that he was denied his constitutional right to an impartial jury. The District Court ruled that the conviction should be set aside, and the United States Court of Appeals for the Second Circuit affirmed. A majority of this Court now reverses, holding that the post-trial evidentiary hearing provided sufficient protection to respondent's right to an impartial jury. Because I find the majority's analysis completely unpersuasive, I dissent. 37 * The right to a trial by an impartial jury lies at the very heart of due process. Irvin v. Dowd, 366 U.S. 717, 721-722, 81 S.Ct. 1639, 1641-1642, 6 L.Ed.2d 751 (1961).1 "[O]ur common-law heritage, our Constitution, and our experience in applying that Constitution have committed us irrevocably to the position that the criminal trial has one well-defined purpose—to provide a fair and reliable determination of guilt." Estes v. Texas, 381 U.S. 532, 565, 85 S.Ct. 1628, 1644, 14 L.Ed.2d 543 (1965) (Warren, C.J., with whom Douglas and Goldberg, JJ., joined, concurring). That purpose simply cannot be achieved if the jury's deliberations are tainted by bias or prejudice. Fairness and reliability are assured only if the verdict is based on calm, reasoned evaluation of the evidence presented at trial. Thus, time and time again, in a broad variety of contexts, the Court has adopted strong measures to protect the right to trial by an impartial jury. 38 The Court has insisted that defendants be given a fair and meaningful opportunity during voir dire to determine whether prospective jurors are biased—even if they have no specific prior knowledge of bias. In Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), the Court held that a trial court may not deny a Negro defendant the opportunity to question prospective jurors on the subject of racial prejudice when the circumstances suggest the need for such questioning. Even when questions about racial prejudice are not required, a generalized and thorough inquiry into prejudice is necessary. Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976). 39 The Court has also insisted that the jury be selected from a representative cross-section of the community. Selection procedures that exclude significant portions of the population, and thus increase the risk of bias, are invalid. For example, in Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), the Court invalidated a selection procedure that resulted in the systematic exclusion of Negroes.2 Similarly, in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), the Court struck down a state rule excluding women from compulsory jury service.3 And in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the Court ruled that a defendant in a capital case was denied his right to an impartial jury on the issue of sentence when the trial judge automatically excluded jurors who had scruples against capital punishment. 40 The right to a jury drawn from a fair cross-section of the community extends even to defendants who are not members of the excluded class. In Peters v. Kiff, supra, the defendant challenging the exclusion of blacks was white; in Taylor v. Louisiana, supra, the defendant challenging the exclusion of women was male. Exclusion is impermissible, not simply because jurors who are not members of the defendant's class may be prejudiced against the defendant, but also because the jury would be deprived of "a perspective on human events that may have unsuspected importance in any case that may be presented." Peters v. Kiff, supra, 407 U.S. at 503-504, 92 S.Ct., at 2168-2169 (opinion announcing judgment). See also Taylor v. Louisiana, supra, at 531, 95 S.Ct., at 698.4 41 The Court has also acted to protect defendants from the possibility that jurors might be prejudiced by extensive pretrial publicity. In Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), it ruled that the trial court should have granted a request for a change in venue, when the entire community had seen the defendant confess to the crime in a police interrogation broadcast on television. The Court did not require a particularized showing that the confession actually prejudiced the jurors against the defendant. Later, in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), the Court reversed a conviction where widespread and inflammatory publicity had preceded the trial, even though each of the jurors had insisted that he would remain impartial. 42 Similarly, the Court has stated that defendants must be protected from the impact on jurors of publicity during trial. Although an absolute constitutional ban on news coverage of trials by the print or broadcast media cannot be justified, the defendant must be given an opportunity to demonstrate that the media's coverage of his case compromised the ability of the particular jury that heard the case to weigh the evidence fairly. Chandler v. Florida, 449 U.S. 560, 575, 101 S.Ct. 802, 810, 66 L.Ed.2d 740 (1981); see also Nebraska Press Assn. v. Stuart, 427 U.S. 539, 563-565, 96 S.Ct. 2791, 2804-06, 49 L.Ed.2d 683 (1976); Estes v. Texas, supra. 43 The Court has guarded against other conduct by third parties that might affect the jury's impartiality. In Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), it ruled that any communication with a juror during a trial about the matter pending before the jury "is, for obvious reasons, deemed presumptively prejudicial." Id., at 229, 74 S.Ct., at 451. Although this presumption is not conclusive, "the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant." Ibid. See also Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) (jury could not try a case after it had been placed in protective custody of deputy sheriffs who had been the principal prosecution witnesses, even though jurors might not have been influenced by the association). 44 To summarize, the Court has required inquiry into prejudice even when there was no evidence that a particular juror was biased; has regarded the absence of a balanced perspective, and not simply the existence of bias against defendant, as a cognizable form of prejudice; has not always required a particularized showing of prejudice; and has strongly presumed that contact with a juror initiated by a third party is prejudicial. In this case, where there was evidence that juror Smith had a serious conflict of interest, and where that conflict would inevitably distort his perspective on the case, the majority nevertheless holds that the juror's simple assertion, after the verdict, that he was not biased sufficiently protects respondent's right to trial by an impartial jury. This holding is utterly inconsistent with the Court's historical recognition of this "most priceless" right. Irvin, supra, 366 U.S., at 721, 81 S.Ct., at 1641. II A. 45 The majority concedes the importance of the right to a trial by an impartial jury. It claims, however, that respondent's right was adequately protected here, because the state trial judge conducted a postverdict evidentiary hearing and concluded that Smith was not actually biased. According to the majority, the Constitution requires only that the defendant be given an opportunity to prove actual bias. Indeed, it would apparently insist on proof of actual bias, not only when a juror had applied for employment with the prosecutor's office, but also when the juror was already employed in the prosecutor's office, or when he served as a prosecuting attorney. The majority relies on the premise that an evidentiary hearing provides adequate assurance that prejudice does not exist. This premise, however, ignores basic human psychology. In cases like this one, an evidentiary hearing can never adequately protect the right to an impartial jury. 46 Despite the majority's suggestions to the contrary, juror Smith was not a passive, indifferent job applicant.5 He began pursuing employment as an investigator in the Office of the District Attorney on September 23, 1974, the same day he was sworn in. He asked a friend, Criminal Court Officer Rudolph Fontaine, to determine the proper method of applying for employment. Once he had completed his application, he gave it to Fontaine for hand delivery to the District Attorney's Office, apparently because he assumed that the court officer had a personal contact in the office. In addition, after the application had been filed, he met regularly with Fontaine and Jury Warden Mario Piazza in order to determine the progress of his application. On November 21, 1974, the jury returned a verdict of guilt and the trial ended. The very next day, Smith phoned the District Attorney's Office to check on the status of his application. When he was unable to get in touch with anyone who knew about his application, he asked his former supervisor to make inquiries in his behalf. 47 When a juror vigorously and actively pursues employment in the prosecutor's office throughout the course of a trial, the probability of bias is substantial. This bias may be conscious, part of a calculated effort to obtain a job. The juror may believe that his application will be viewed favorably if the defendant is found guilty. Thus, he may decide to vote for a verdict of guilty regardless of the evidence, and he may attempt to persuade the other jurors that acquittal is not justified. There is also a very serious danger of unconscious bias. Only individuals of extraordinary character would not be affected in some way by their interest in future employment. Subconsciously, the juror may tend to favor the prosecutor simply because he feels some affinity with his potential employer. Indeed, the juror may make a sincere effort to remain impartial, and yet be unable to do so. 48 Not only is the probability of bias high, it is also unlikely that a post-trial evidentiary hearing would reveal this bias. As the Court of Appeals stated, given the human propensity for self-justification, it is very difficult "to learn from a juror's own testimony after the verdict whether he was in fact 'impartial.' " 632 F.2d 1019, 1022 (CA2 1980). Certainly, a juror is unlikely to admit that he had consciously plotted against the defendant during the course of the trial. Such an admission would have subjected juror Smith to criminal sanctions.6 It would also have damaged his prospects for a career in law enforcement. A law enforcement agency is unlikely to hire an investigator whose credibility could always be impeached by an admission that he had disregarded his juror's oath in a criminal trial. 49 Even when the bias was not part of an affirmative course of misconduct, however, but was unconscious, a juror is unlikely to admit that he had been unable to weigh the evidence fairly. If he honestly believes that he remained impartial throughout the trial, no amount of questioning will lead to an admission. Rather, the juror will vehemently deny any accusations of bias.7 50 In the past, the Court has recognized that the question whether a juror is prejudiced poses substantial problems of proof. "Bias or prejudice is such an elusive condition of the mind that it is most difficult, if not impossible, to always recognize its existence, and it might exist in the mind of one (on account of his relations with one of the parties) who was quite positive that he had no bias, and said that he was perfectly able to decide the question wholly uninfluenced by anything but the evidence." Crawford v. United States, 212 U.S. 183, 196, 29 S.Ct. 260, 265, 53 L.Ed. 465 (1909). 51 Similarly, in Irvin v. Dowd, 366 U.S., at 728, 81 S.Ct., at 1645 the Court stated that although a juror may be sincere when he says that he was fair and impartial to the defendant, the "psychological impact requiring such a declaration before one's fellows is often its father." And in Peters v. Kiff, the opinion announcing the judgment stated: "It is in the nature of the practices here challenged that proof of actual harm, or lack of harm, is virtually impossible to adduce." 407 U.S., at 504, 92 S.Ct., at 2169 (MARSHALL, J., joined by Douglas and Stewart, JJ.). 52 I believe that in cases like this one, where the probability of bias is very high, and where the evidence adduced at a hearing can offer little assurance that prejudice does not exist, the juror should be deemed biased as a matter of law. Specifically, where a juror pursues employment with the office of the prosecutor, under circumstances highly suggestive of misconduct or conflict of interest, bias should be "implied," and he should be automatically disqualified, despite the absence of proof of actual bias. If the juror's efforts to secure employment are not revealed until after the trial, the conviction must be set aside.8 The right to a trial by an impartial jury is too important, and the threat to that right too great, to justify rigid insistence on actual proof of bias. Such a requirement blinks reality. B 53 Adoption of a conclusive presumption of bias in these limited circumstances would not be without precedent; such presumptions of juror bias have ancient historical roots. At English common law, prospective jurors could be challenged not only when the defendant could prove actual bias, but also when the circumstances were such that bias could be implied.9 Blackstone states that exclusion of a prospective juror for implied bias is appropriate when it is shown: 54 "that [he] is of kin to either party within the ninth degree; that he has been arbitrator on either side; that he has an interest in the cause; that there is an action pending between him and the party; that he has taken money for his verdict; that he has formerly been a juror in the same cause; that he is the party's master, servant, counsellor, steward, or attorney, or of the same society or corporation with him." 3 W. Blackstone, Commentaries 480-481 (W. Hammond ed. 1890). 55 Similarly, Bracton states that if the defendant "suspects any of the twelve jurors he may remove him for just cause . . . as where there are deadly enmities between some of them and the indicted man, or there is a greedy desire to get his land . . .; if there is ground for suspicion all are to be removed, that the inquiry may proceed free from all doubts." 2 S. Thorne, Bracton on the Laws and Customs of England 405 (1968). 56 The States also employ rules of implied bias. Most jurisdictions have statutes that set forth conduct or status that will automatically disqualify prospective jurors, without regard to whether that person is actually biased. These statutes frequently exclude persons related to the prosecution, defense counsel, a witness, or the defendant.10 The New York statute, which would have been applied here if juror Smith's intention to apply for a job had come to light during voir dire, is especially broad; it disqualifies any person who has a relationship to a party or witness to the action which is likely to preclude that person from rendering an impartial verdict. N.Y.Crim.Proc. Law § 270.20(1)(c) (McKinney 1971). This provision, added to the statute in 1971, calls for the application of an "average person" standard and does not require proof that the particular potential juror would be biased. See, e.g., People v. Provenzano, 50 N.Y.2d 420, 424, 429 N.Y.S.2d 562, 563, 407 N.E.2d 408, 410 (1980).11 57 Some state courts have also permitted challenges for implied bias on a case-by-case basis.12 In fact, at least one court has presumed bias in circumstances very similar to those presented here. In Haak v. State, Ind., 417 N.E.2d 321 (1981), the Indiana Supreme Court held that a woman whose husband was offered a position on the prosecutor's staff on the day that she was selected as a juror in a rape case was impliedly biased. The court stated that the juror's bias could not be "avoided or dissolved by admonitions from the court or by the juror's assertion that she believed she could judge the case impartially." Ibid. It was unrealistic to "expect a juror in this situation to act with an even hand toward both parties." Ibid. Thus, the trial judge erred in refusing to grant defendant's motion for a mistrial.13 See also Tableporter v. Urist, 157 Misc. 347, 283 N.Y.S. 350 (Mun.Ct.1935) (conviction set aside where juror's son applied to defendant for a job). 58 Of course, the fact that many States employ rules of implied bias in situations similar to those presented here does not necessarily imply that such rules are constitutionally mandated.14 The widespread state practice does, however, support that conclusion. The States would not adopt such rules at the expense of their strong interest in efficiently procuring convictions if they were not committed to safeguarding the right to trial by an impartial jury, and if they did not believe that this right was seriously threatened. C 59 In concluding that an implied-bias rule is not appropriate, and that a post-trial evidentiary hearing is an adequate remedy, the majority relies heavily on this Court's decision in Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954). The defendant in that case was being tried for income tax evasion. During the course of the trial, an unnamed person attempted to bribe a juror. The juror reported this incident to the trial judge, who asked the Federal Bureau of Investigation (FBI) to conduct an investigation. After interviewing the juror, the FBI concluded that the bribery attempt had been made "in jest," Id., at 228, 74 S.Ct., at 451, and had not had a prejudicial impact. The trial judge decided not to take any action. The defense learned of the incident after the jury returned a verdict of guilty. It moved for a new trial, complaining that the bribery attempt and the FBI investigation were likely to have influenced the jury's deliberations. The Court held that any private communication with a juror during trial about the matter pending before the jury is presumptively prejudicial. It stated, however, that this presumption is not conclusive, and that the Government should be given an opportunity to show that the contact was harmless. The Court then remanded the case to the District Court with directions to hold a hearing to determine whether the incident was harmful, and if so, to grant a new trial. 60 According to the majority, Remmer establishes that a postverdict inquiry will always be the appropriate remedy where claims of jury prejudice are raised after the conclusion of the trial. The holding of Remmer is not nearly so broad, however. The Court did not purport to address instances of serious juror misconduct in which bias could be implied. An examination of the facts of that case reveals that the danger of bias was much less substantial in that case than in this one. The defendant claimed only that the jury might have been influenced by the unsuccessful bribery attempt and the FBI investigation. There were no allegations that the jurors themselves were guilty of misconduct. Moreover, even if the jurors were influenced by the bribery attempt made "in jest" or the contact with the FBI, an evidentiary hearing was more likely to reveal that impact. A juror will be less reluctant to admit that he was disturbed or upset by the misconduct of a third party, than to admit that he himself acted improperly. 61 The majority also relies upon this Court's decisions in Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734 (1950); Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187 (1948); and United States v. Wood, 299 U.S. 123, 57 S.Ct. 177, 81 L.Ed. 78 (1936).15 In these cases, the Court indicated that the fact that a juror was employed by the Federal Government did not by itself require a finding of implied bias in cases in which the Government was a party.16 The Court was not persuaded by "vague conjectures" that government employees are "peculiarly vulnerable" to a "miasma of fear," or are "so intimidated that they cringe before their Government in fear of investigation and loss of employment if they do their duty as jurors." Dennis, supra, 339 U.S. at 172, 70 S.Ct., at 523. However, these cases do not hold that an implied-bias rule would never be appropriate. In all three decisions the Court stressed that trial judges would retain power to safeguard the interests of the defendant where circumstances suggest a real danger of bias. This power surely includes the application of a per se rule where necessary. Dennis, supra, at 168, 70 S.Ct., at 521; Frazier, supra, 335 U.S. at 511, 69 S.Ct., at 209; Wood, supra, 299 U.S. at 150, 57 S.Ct., at 187.17 62 Indeed, in Leonard v. United States, 378 U.S. 544, 84 S.Ct. 1696, 12 L.Ed.2d 1028 (1964) (per curiam ), this Court explicitly endorsed the application of an implied-bias rule.18 The petitioner in that case was convicted in separate trials of forging Government checks and of transporting forged instruments in interstate commerce. The two cases were tried in succession. The jury in the first case announced its guilty verdict in open court in the presence of the jury panel from which the jurors who were to try the second case were selected. Petitioner objected, but the objection was overruled. This Court reversed, holding that prospective jurors who have sat in the courtroom and heard a verdict returned against an individual immediately prior to that individual's trial on a similar charge should be automatically disqualified.19 63 In short, this Court's cases do not establish that an automatic disqualification rule is never appropriate. To the contrary, Leonard reveals that the Court has employed such a rule in those limited circumstances presenting an unusually high probability that a juror is biased and a similarly high probability that a hearing will not reveal that bias. D 64 The majority also emphasizes that federal courts exercising habeas corpus jurisdiction must ordinarily defer to state-court findings of fact. It points to 28 U.S.C. § 2254(d), which provides that state-court factfinding should be presumed correct. Of course, federal courts have limited power of review in habeas corpus proceedings. I think it clear, however, that deference is not appropriate under the circumstances of this case. 65 As I have already explained, I do not believe that it was possible for the state court to determine, on the basis of an evidentiary hearing, whether Smith was biased. The state factfinding was inherently unreliable. Section 2254(d) recognizes that deference is not appropriate in such cases. It provides that the presumption in favor of state factfinding may be overcome when "the applicant did not receive a full, fair, and adequate hearing in the state court proceeding," or when "he was otherwise denied due process of law." §§ 2254(d)(6), (7). The evidentiary hearing conducted here was not fair and adequate. Furthermore, because the hearing could not protect sufficiently the right to an impartial jury, respondent was denied due process. Under the circumstances, § 2254(d) does not bar review of the state-court decision. III 66 I would also affirm the decision of the Court of Appeals on an alternative ground. Respondent was prejudiced by the prosecutors' failure to disclose during the trial their knowledge that juror Smith had applied for a job with the Office of the District Attorney. If the prosecutors had informed the court in a timely fashion, an alternate juror would almost certainly have been selected, thus ending any danger of bias. 67 The prosecutors' conduct in withholding the information was clearly improper. At the evidentiary hearing, they claimed that they failed to disclose the fact that Smith had applied for a job with their office in part because they were caught up in preparations for the final stages of trial. This explanation is not convincing. At the close of the evidence, the prosecutors revealed that another juror, Bethel, had been arrested on a narcotics charge prior to trial and had agreed to cooperate with the District Attorney's Office in exchange for dismissal of the charges. After this disclosure, and an in camera hearing, the parties consented to the discharge of this juror, and his replacement by one of four alternates. The fact that the prosecutors were willing to disclose information concerning Bethel suggests that they failed to reveal Smith's conduct, not because of time pressures, but because they believed that Smith's presence on the jury would be valuable.20 Even the petitioner now concedes that the prosecutors should have informed the trial judge and the defense as soon as they learned of Smith's application, and that their failure to do so was inexcusable. 68 The majority argues that prosecutorial misconduct, by itself, is not sufficient to justify reversal of a conviction in habeas corpus proceedings.21 It relies primarily on this Court's decisions in United States v. Agurs, 427 U.S. 97, 110, 112, 96 S.Ct. 2392, 2400-2401, 49 L.Ed.2d 342 (1976), and Brady v. Maryland, 373 U.S. 83, 87, 92, 83 S.Ct. 1194, 1196, 1199, 10 L.Ed.2d 215 (1963), which suggest that the constitutional obligation to disclose material evidence is not measured simply by the moral culpability of the prosecutor, and that relief is ordinarily appropriate only when the defendant was prejudiced by the prosecutor's actions.22 Even if the majority is correct in holding that prejudice is also required where the prosecutor fails to disclose information suggesting that a juror might be biased, I think it clear that respondent was prejudiced here. If the fact that Smith had applied for a job had been promptly disclosed, respondent's jury trial right could have been protected. 69 If disclosure had been made during trial, the parties might simply have agreed that Smith should be replaced with one of the alternates. Such an agreement was reached with respect to juror Bethel. The trial judge might also have exercised his power under N.Y.Crim.Proc.Law § 270.35 (McKinney 1971), which provides that "[i]f at any time after the trial jury has been sworn and before its rendition of a verdict the court is satisfied, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve . . ., or that a juror has engaged in misconduct of a substantial nature . . ., the court may, if an alternative juror . . . is available for service, discharge such trial juror and order that he be replaced."23 Both of these simple remedies would have eliminated the possibility of juror bias. 70 At the very least, as the trial judge himself stated, if disclosure had been made during trial he would have conducted a hearing to determine whether Smith had engaged in misconduct or whether he was actually biased. As I have already suggested, I have serious doubts whether an evidentiary hearing of this nature could ever be reliable. However, a hearing during trial is far more likely to reveal evidence of bias than a post-trial hearing. The pressures on a juror in Smith's position would be much less substantial. After trial, he would have to admit that he had been unable to obey his oath as a juror, and that he had been unfair in evaluating the evidence. During trial, on the other hand, he would only have to state that his pending application for a job with the prosecutors' office might affect his ability to weigh the evidence fairly. 71 Just as important, the pressures on the judge are much less substantial where the hearing is held during the course of a trial. During trial, if the judge finds that a juror is biased, he can simply replace the juror with an alternate. After trial, if actual bias is found, the only remedy is to set aside the conviction and begin a new trial. Any judge would hesitate before taking such action. The pressures must have been particularly great in this case. Respondent was first tried in 1972. When the jury was unable to reach a verdict, a mistrial was declared. Respondent's second trial did not begin until two years later. The second trial lasted nine weeks, and 44 witnesses were called to testify. Under these circumstances, where a third trial would have led to even more expense and delay, a judge would be reluctant to set aside the conviction. 72 In short, if the prosecutors had not withheld the information about Smith's job application, it is quite likely that Smith would have been excused and replaced with an alternate. If a replacement had been made, the substantial danger of juror bias would have been eliminated. Thus, under the circumstances, respondent was prejudiced by the prosecutors' misconduct. Given the existence of this prejudice, and the fundamental importance of the right to an impartial jury, I would set aside the conviction. 73 The limited power of federal courts in habeas corpus proceedings poses no obstacle to this conclusion. Although the trial judge found during a post-trial hearing that Smith was not actually biased, deference to state-court factfinding is not required where the evidentiary hearing on which the factfinding is based is inherently unreliable. See supra, at 238-239. The prosecutors' misconduct in this case deprived respondent of a hearing during trial, and of the opportunity to substitute an alternate juror. Where the prosecutors' conduct acted to deprive respondent of this alternative, the State cannot, consistent with due process, relegate respondent's right to an impartial jury to a belated, inadequate post-trial hearing. IV 74 The majority adopts a completely unrealistic view of the efficacy of a post-trial hearing, and thus fails to accord any meaningful protection to the right to an impartial jury, one of the most valuable rights possessed by criminal defendants. I would affirm the judgment of the Court of Appeals on the ground that a juror who applies for employment with the office of the prosecutor and vigorously pursues that employment throughout the course of the trial is impliedly biased. I would also affirm on the alternative ground that the prosecutors improperly failed to disclose during trial that the juror applied for a job, thereby prejudicing respondent by depriving him of the opportunity to substitute an unbiased alternate juror. 75 The majority concedes that due process means an unbiased jury, "capable and willing to decide the case solely on the evidence." Ante, at 217. All respondent has asked for is the opportunity to be tried by such a jury. If the prosecutors had taken the simple step of informing the trial judge that Smith had applied for employment with their office, Smith could have been replaced, and respondent would have received an opportunity to be tried by an impartial jury. Because the prosecutors intentionally failed to do so, however, a juror who was almost certainly prejudiced against respondent participated in the deliberations. If due process really does mean a full and fair opportunity to be tried by an unbiased jury, "capable and willing to decide the case solely on the evidence"—then in this case, due process has been denied. 1 Section 330.30 provides in pertinent part: "At any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof upon the following grounds: * * * * * "2. That during the trial there occurred, out of the presence of the court, improper conduct by a juror, or improper conduct by another person in relation to a juror, which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict. . . ." 2 CPL § 330.40 provides that motions to set aside the verdict under CPL § 330.30 must be decided by hearing if they allege disputed facts sufficient to grant the motion. At the hearing, "the defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion." CPL § 330.40(g). 3 Smith's letter of application was addressed to the District Attorney and stated: "I understand that a federally funded investigative unit is being formed in your office to investigate major felonies. I wish to apply for a position as an investigator." The letter did not mention that Smith was a juror in respondent's trial. Appended to the letter was a resume containing biographical information about Smith. People v. Phillips, 87 Misc.2d 613, 616, 384 N.Y.S.2d 906, 909 (1975). 4 The trial judge described the voir dire in respondent's case as "ten days of meticulous examination." Id., at 614, 384 N.Y.S.2d, at 907. During his voir dire, Smith stated that he intended to pursue a career in law enforcement and that he had applied for employment with a federal drug enforcement agency. He also disclosed that his wife was interested in law enforcement, an interest which arose out of an incident in which she was assaulted and seriously injured. Smith stated that he had previously worked as a store detective for Bloomingdale's Department Store, and, in that capacity, had made several arrests which led to contact with the District Attorney's Office. In response to close inquiry by defense counsel, Smith declared his belief that he could be a fair and impartial juror in the case. This assurance apparently satisfied defense counsel, for Smith was permitted to take his seat among the jurors even though the defense had several unused peremptory challenges. 5 This conclusion was based upon the majority's reading of our decision in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), a reading by which it concluded that due process is violated when the prosecutor's actions treat a defendant unfairly or impugn the integrity of the judicial process, even if the defendant is not thereby prejudiced. 632 F.2d 1019, 1023 (1980). As will be seen in Part III of this opinion, the Court of Appeals misread Agurs. 6 Respondent may, of course, defend the judgment below on any ground which the law and the record permit, provided the asserted ground would not expand the relief which has been granted. 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); Dandridge v. Williams, 397 U.S. 471, 475, n. 6, 90 S.Ct. 1153, 1156, n. 6, 25 L.Ed.2d 491 (1970); Ryerson v. United States, 312 U.S. 405, 408, 61 S.Ct. 656, 658, 85 L.Ed. 917 (1941). 7 Respondent correctly notes that determinations made in Remmer-type hearings will frequently turn upon testimony of the juror in question, but errs in contending that such evidence is inherently suspect. As we said in Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734 (1950), "[o]ne may not know or altogether understand the imponderables which cause one to think what he thinks, but surely one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter." Id., at 171, 70 S.Ct., at 523. See also United States v. Reid, 12 How. 361, 366, 13 L.Ed. 1023 (1852). 8 In connection with his argument that due process was denied by the prosecutors' withholding of Smith's application, respondent notes that had the prosecutors disclosed the application, the trial court could have replaced Smith with an alternate juror. Thus, respondent argues, not only was the prosecutors' action itself a denial of due process, but it also prevented respondent from availing himself of the process available under New York law for correcting juror bias. See N.Y. CPL § 270.35 (McKinney 1971). This argument proves too much. If the hearing and determination to replace a juror during trial would have adequately protected respondent's right to due process of law, and would not have been rendered impossible by necessary reliance on the juror's own testimony, we see no reason why a post-trial hearing and determination would be any less protective or possible. 9 As we said of Brady in United States v. Agurs, 427 U.S., at 106, 96 S.Ct., at 2398: [T]he confession could not have affected the outcome on the issue of guilt but could have affected Brady's punishment. It was material on the latter issue but not on the former. And since it was not material on the issue of guilt, the entire trial was not lacking in due process." 10 Even in cases of egregious prosecutorial misconduct, such as the knowing use of perjured testimony, we have required a new trial only when the tainted evidence was material to the case. See Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 272, 79 S.Ct. 1173, 1178, 3 L.Ed.2d 1217 (1959). This materiality requirement implicitly recognizes that the misconduct's effect on the trial, not the blameworthiness of the prosecutor, is the crucial inquiry for due process purposes. We note, of course, that nothing in this case suggests that the prosecutors' conduct was undertaken in bad faith. As the trial court found, "there is no evidence which to any degree points to a conclusion that any member of the District Attorney's staff, . . . or any court officer, had a sinister or dishonest motive with respect to Mr. Smith's letter of application, or sought to gain thereby an unfair advantage over the defendant." 87 Misc.2d, at 618-619, 384 N.Y.S.2d, at 910. * In the exceptional situations that may require application of an "implied bias" doctrine, the lower federal courts need not be deterred by 28 U.S.C. § 2254(d), which provides that in a federal habeas proceeding "a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction . . ., evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear . . . * * * * * "(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing; * * * * * "(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or "(7) that the applicant was otherwise denied due process of law in the State court proceeding. . . ." In those extraordinary situations involving implied bias, state-court proceedings resulting in a finding of "no bias" are by definition inadequate to uncover the bias that the law conclusively presumes. 1 In Irvin v. Dowd, the Court stated: "In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682; Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749. 'A fair trial in a fair tribunal is a basic requirement of due process.' In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942. In the ultimate analysis, only the jury can strip a man of his liberty or his life. In the language of Lord Coke, a juror must be as 'indifferent as he stands unsworne.' Co. Litt. 155b. His verdict must be based upon the evidence developed at the trial. Cf. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654. This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies." 366 U.S., at 722, 81 S.Ct., at 1642. 2 In Peters v. Kiff, the opinion announcing the judgment of the Court stated that such procedures were unacceptable even when there is no proof of actual bias. 407 U.S., at 504, 92 S.Ct., at 2169 (MARSHALL, J., joined by Douglas and Stewart, JJ.). The opinion explained that actual bias is virtually impossible to prove. Ibid. Thus, it is necessary to "decide on principle which side shall suffer the consequences of unavoidable uncertainty." Ibid. Given the great potential for harm, and the importance of the right to an impartial jury, doubts should be resolved in favor of the defendant. Ibid. 3 See also Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946). 4 In Taylor v. Louisiana, the Court stated that " 'a flavor, a distinct quality is lost if either sex is excluded,' " and that " 'exclusion of one may indeed make the jury less representative of the community than would be true if an economic or racial group were excluded.' " 419 U.S., at 532, 95 S.Ct., at 698 (quoting Ballard v. United States, supra, 329 U.S. at 194, 67 S.Ct., at 264). 5 The majority notes that during voir dire, the defense chose not to challenge Smith, even though he had stated that he had a strong interest in a law enforcement career. Ante, at 212-213, n. 4. However, since the defendant was himself a law enforcement officer, such an interest would not necessarily have been unfavorable to the defense. I think it clear that a general career interest in law enforcement is very different from an application for a job with the prosecutor in a particular case. 6 If Smith were found to have engaged in a course of conscious misconduct, he might have been prosecuted under N.Y. Penal Law § 195.05 (obstructing governmental administration); § 215.20 (bribe receiving by a juror); or § 215.20 (misconduct by a juror) (McKinney 1975). He might also have been found guilty of criminal contempt. See § 215.20. 7 The petitioner emphasizes that during the evidentiary hearing, the trial judge had an opportunity to observe the juror's demeanor. Thus, argues the petitioner, even where the juror denies that he was biased, the trial judge will be able to measure the juror's integrity, and decide whether to credit his claim that he fairly weighed the evidence. It may be true that the opportunity to observe the juror will be of assistance in some cases. However, it will be of little value where the juror honestly but falsely believes that he was impartial. 8 Although the concurring opinion would not use an implied-bias rule in this case, it agrees that in some circumstances, such a rule is appropriate. It suggests, for example, that a finding of implied bias might be justified where "the juror is an actual employee of the prosecuting agency." Ante, at 222. In my view, it is impossible to draw meaningful distinction between a juror who is an actual employee of the prosecuting agency, and a juror who has applied for employment with that agency. Indeed, there may be a greater danger of bias where the juror is pursuing a job. An individual who has not yet obtained employment and who believes that his job prospects are at stake may be very anxious to please. 9 In United States v. Wood, 299 U.S. 123, 57 S.Ct. 177, 81 L.Ed. 78 (1936), the Court described the common law regarding challenges to prospective jurors as follows: "Challenges at common law were to the array, that is, with respect to the constitution of the panel, or to the polls, for disqualification of a juror. Challenges to the polls were either 'principal' or 'to the favor,' the former being upon grounds of absolute disqualification, the latter for actual bias." Id., at 134-135, 57 S.Ct., at 179-180. See also 3 W. Blackstone, Commentaries 480-481 (W. Hammond ed. 1890). 10 See, e.g., Cal.Penal Code Ann. § 1074 (West Supp.1981); Idaho Code § 19-2020 (1979); Minn.Rule Crim.Proc. 26.02(5); N.Y.Crim.Proc.Law § 270.20(1) (McKinney 1971); N.D.Cent.Code § 29-17-36 (Supp.1981); Okla.Stat., Tit. 22 § 660 (1971); Ore.Rev.Stat. § 136.220 (1979); S.D. Comp.Laws Ann. § 23A-20-13 (1979); Utah Code Ann. § 77-35-18(e) (1980). 11 At the time of voir dire, Smith had not yet applied for a job with the office of the District Attorney. It seems likely, however, that if he had filed an application at this point, and this fact came to light during voir dire, he would have been automatically disqualified pursuant to N.Y.Crim.Proc.Law § 270.20(1)(c) (McKinney 1971). 12 See, e.g., State v. West, 157 W.Va. 209, 210, 200 S.E.2d 859, 861 (1973) (reversible error where trial court denies challenge for cause to juror who is employee of prosecutorial agency); State v. Kokoszka, 123 Conn. 161, 163, 193 A. 210, 211 (1937); State v. Howard, 17 N.H. 171 (1845), overruled on other grounds, Shulinsky v. Boston & M. R. Co., 83 N.H. 86, 89, 139 A. 189, 191 (1927). 13 Cf. Block v. State, 100 Ind. 357 (1885) (juror who is deputy prosecutor should be disqualified); Barnes v. State, 263 Ind. 320, 330 N.E.2d 743 (1975) (juror whose relative is a member of the prosecutor's staff should be disqualified). 14 A decision to endorse rules of implied bias would not lead to the constitutionalization of a wide variety of state disqualification rules. As I stated above, I believe that an implied-bias rule is constitutionally mandated only when the probability of bias is particularly great, and when an evidentiary hearing is particularly unlikely to reveal that bias. Measured against this standard, many state rules would not be constitutionally required. 15 It further relies on this Court's decision in Chandler v. Florida, 449 U.S. 560, 101 S.Ct. 802, 66 L.Ed.2d 740 (1981), which held that the appropriate safeguard against the possibility that news coverage of a defendant's trial influenced the jurors is the defendant's opportunity to show that the coverage compromised the ability of the jury to adjudicate fairly. However, that case certainly does not hold that automatic disqualification rules would never be appropriate. 16 United States v. Wood, upheld the constitutionality of a District of Columbia statute that permitted Federal Government employees to serve on juries in which the United States was a party. Dennis v. United States, ruled that Government employees need not be excused from serving as jurors in the prosecution of the General Secretary of the Communist Party, U.S.A. Frazier v. United States, refused to uphold a challenge to a jury that consisted entirely of Government employees. 17 There is language in each of the three opinions that might be interpreted to suggest that a hearing to determine actual bias will always be a sufficient remedy. See, e.g., Dennis v. United States, 339 U.S., at 171-172, 70 S.Ct., at 523 ("[p]reservation of the opportunity to prove actual bias is a guarantee of a defendant's right to an impartial jury"); Frazier v. United States, 335 U.S., at 510, 69 S.Ct., at 208 (in ordinary circumstances jurors are subject to challenge only for "actual bias"); Wood v. United States, 299 U.S., at 150, 57 S.Ct., at 187 (courts should conduct full inquiry into "actual bias" where circumstances suggest such inquiry is appropriate). In these cases, however, the Court regarded "actual bias" as including "not only prejudice in the subjective sense but also such as might be thought implicitly to arise 'in view of the nature or circumstances of his employment, or of the relation of the particular governmental activity to the matters involved in the prosecution, or otherwise.' " Frazier v. United States, 335 U.S., at 510-511, n. 19, 69 S.Ct., at 208, n. 19 (quoting United States v. Wood, supra, at 133-134, 57 S.Ct., at 179). 18 Cf. Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 440, 444, 71 L.Ed. 749 (1927) (judge with financial interest in outcome is disqualified from hearing case, even though he might not actually have been affected by financial interest, because average man in that position would be subject to "possible temptation . . . not to hold the balance nice, clear and true between the State and the accused"); In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955) (judge may not conduct grand jury inquiry and then adjudicate charges against defendant because his impartiality might reasonably be questioned); Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972) (opinion of MARSHALL, J., joined by Douglas and Stewart, JJ.) (possibility that jury selection procedures that exclude Negroes might result in bias against defendant is sufficient to justify invalidation of those procedures); see also n. 2 supra. It is relevant to note that if a judge had an application pending with a litigant while he was trying a case, he would be presumed biased, no matter how vigorously he protested that he was actually impartial. See Tumey, supra; Murchison, supra. 19 A number of lower federal courts have also suggested that implied-bias rules may be appropriate in some circumstances. See, e.g., McCoy v. Goldston, 652 F.2d 654 (CA6 1981) (bias should be implied and new trial granted where juror conceals information that would have resulted in disqualification for cause); United States v. Allsup, 566 F.2d 68, 71-72 (CA9 1977) (new trial should be granted in robbery trial where two of jurors worked for bank that had been robbed); Deschenes v. United States, 224 F.2d 688 (CA10 1955) (dictum) (in some circumstances prejudice must be presumed and court, as matter of law, must grant a new trial); Cavness v. United States, 187 F.2d 719 (CA5 1951) (dictum) (same). See also United States v. Kyle, 152 U.S.App.D.C. 141, 145, 469 F.2d 547, 551 (1972), (Bazelon, J., dissenting) (defendant claims that juror who had been castigated by judge when serving as a juror in another trial would be prejudiced against him); ("[a] Procrustean demand for a showing of prejudice is ill-suited to a case where the very integrity of the judicial process is at stake and where the inability to demonstrate prejudice offers little assurance that prejudice did not exist"), cert. denied, 409 U.S. 1117, 93 S.Ct. 920, 34 L.Ed.2d 700 (1973). But see United States v. Brown, 644 F.2d 101, 104-105 (CA2 1981) (court refuses to " 'create a set of unreasonably constricting presumptions that jurors be excused for cause due to certain occupational or other special relationships which might bear directly or indirectly on the circumstances of a given case, where . . . there is no showing of actual bias or prejudice' ") (quoting Mikus v. United States, 433 F.2d 719, 724 (CA2 1970)). Almost 200 years ago, in United States v. Burr, 25 Fed.Cas. 49, 50 (No. 14,692g) (CC Va.1807), Chief Justice Marshall indicated that he believed implied-bias rules were appropriate in some circumstances. A person "may declare that he feels no prejudice in the case; and yet the law cautiously incapacitates him from serving on the jury because it supposes prejudice, because in general persons in a similar situation would feel prejudice." Ibid. 20 The state trial judge, the District Court, and the Court of Appeals all condemned the prosecuting attorneys' conduct. The trial judge stated that the failure to inform the court and defense counsel of Smith's application was "a serious error in judgment," People v. Phillips, 87 Misc.2d 613, 628, 384 N.Y.S.2d 906, 916 (1975), and "unique misjudgment," id., at 631, 384 N.Y.S.2d, at 918. See also 485 F.Supp. 1365, 1369-1370 (S.D.N.Y.1980); 632 F.2d 1019, 1023 (CA2 1980). 21 The majority also points out that federal courts do not have supervisory power over state courts, and that as a result, habeas corpus review of a state-court conviction based on prosecutorial misconduct must focus on possible due process violations. See Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). 22 Depending on the nature of the prosecutor's misconduct, the prejudice requirement may be easily satisfied. If the prosecutor knowingly presents perjured testimony, the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. United States v. Agurs, 427 U.S., at 103-104, 96 S.Ct., at 2397-2398. After all, presentation of perjured testimony is "a corruption of the truth-seeking function of the trial process." Id., at 104, 96 S.Ct., at 2398. Where the prosecutor fails to comply with a request for specific evidence, and if there is a substantial basis for claiming that the evidence was material, the failure to disclose is rarely excused. Brady v. Maryland, 373 U.S., at 87, 83 S.Ct., at 1196. The defendant faces a substantial burden only if the prosecutor fails to disclose material evidence, when no specific request for the evidence was ever made. In this circumstance, the verdict may be set aside if the evidence creates a reasonable doubt that did not otherwise exist. United States v. Agurs, supra, at 112, 96 S.Ct., at 2401. 23 The failure to disclose possible juror bias can be analogized to a prosecutor's knowing use of perjured testimony. Both forms of prosecutorial misconduct result in corruption of the truth-seeking function of the trial process. See United States v. Agurs, supra, at 105, 96 S.Ct., at 2398; see also n. 20, supra. Thus, in this context also, the conviction should be set aside if there is any reasonable likelihood that the material omission could have affected the judgment of the jury. See 427 U.S., at 103-104, 96 S.Ct., at 2397-2398; n. 20, supra. Here, clearly, such a reasonable likelihood does exist.

34

455 U.S. 130 102 S.Ct. 894 71 L.Ed.2d 21 J. Gregory MERRION and Robert L. Bayless, etc., et al., Petitioners,v.JICARILLA APACHE TRIBE, et al. AMOCO PRODUCTION COMPANY and Marathon Oil Company, Petitioners, v. JICARILLA APACHE INDIAN TRIBE, et al. Nos. 80-11, 80-15. Argued March 30, 1981. Reargued Nov. 4, 1981. Decided Jan. 25, 1982. Syllabus Respondent Indian Tribe, pursuant to its Revised Constitution (which had been approved by the Secretary of the Interior (Secretary) as required by the Indian Reorganization Act of 1934), enacted an ordinance (also approved by the Secretary) imposing a severance tax on oil and gas production on the tribal reservation land. Oil and gas received by the Tribe as in-kind royalty payments from lessees of mineral leases on the reservation are exempted from the tax. Petitioners, lessees under Secretary-approved long-term leases with the Tribe to extract oil and natural gas deposits on reservation land, brought separate actions in Federal District Court to enjoin enforcement of the tax. The District Court, consolidating the actions, entered a permanent injunction, ruling that the Tribe had no authority to impose the tax, that only state and local authorities had the power to tax oil and gas production on Indian reservations, and that the tax violated the Commerce Clause. The Court of Appeals reversed, holding that the taxing power is an inherent attribute of tribal sovereignty that has not been divested by any treaty or Act of Congress, and that there was no Commerce Clause violation. Held: 1. The Tribe has the inherent power to impose the severance tax on petitioners' mining activities as part of its power to govern and to pay for the costs of self-government. Pp. 136-152. (a) The power to tax is an essential attribute of Indian sovereignty because it is a necessary instrument of self-government and territorial management. This power enables a tribal government to receive revenues for its essential services. The power does not derive solely from the Tribe's power to exclude non-Indians from tribal lands but from the Tribe's general authority, as sovereign, to control economic activities within its jurisdiction, and to defray the cost of providing governmental services by requiring contributions from persons or enterprises engaged in such activities. Here, petitioners, who have availed themselves of the privilege of carrying on business on the reservation, benefit from police protection and other governmental services, as well as from the advantages of a civilized society assured by tribal government. Under these circumstances, there is nothing exceptional in requiring petitioners to contribute through taxes to the general cost of such government. The mere fact that the Tribe enjoys rents and royalties as the lessor of the mineral lands does not undermine its authority to impose the tax. Pp. 137-144. (b) Even if the Tribe's power to tax were derived solely from its power to exclude non-Indians from the reservation, the Tribe has the authority to impose the severance tax. Non-Indians who lawfully enter tribal lands remain subject to a tribe's power to exclude them, which power includes the lesser power to tax or place other conditions on the non-Indian's conduct or continued presence on the reservation. The Tribe's role as commercial partner with petitioners should not be confused with its role as sovereign. It is one thing to find that the Tribe has agreed to sell the right to use the land and take valuable minerals from it, and quite another to find that the Tribe has abandoned its sovereign powers simply because it has not expressly reserved them through a contract. To presume that a sovereign forever waives the right to exercise one of its powers unless it expressly reserves the right to exercise that power in a commercial agreement turns the concept of sovereignty on its head. Pp. 144-148. (c) The Federal Government did not deprive the Tribe of its authority to impose the severance tax by Congress' enactment of the 1938 Act establishing the procedures for leasing oil and gas interests on tribal lands. Such Act does not prohibit the Tribe from imposing the tax when both the tribal Constitution and the ordinance authorizing the tax were approved by the Secretary. Nor did the 1927 Act permitting state taxation of mineral leases on Indian reservations divest the Tribe of its taxing power. The mere existence of state authority to tax does not deprive an Indian tribe of its power to tax. Moreover, the severance tax does not conflict with national energy policies. To the contrary, the fact that the Natural Gas Policy Act of 1978 includes taxes imposed by an Indian tribe in its definition of costs that may be recovered under federal energy pricing regulations, indicates that such taxes would not contravene such policies and that the tribal authority to do so is not implicitly divested by that Act. Pp. 149-152. 2. The severance tax does not violate the "negative implications" of the Commerce Clause. Pp. 152-158. (a) Courts are final arbiters under the Commerce Clause only when Congress has not acted. Here, Congress has affirmatively acted by providing a series of federal checkpoints that must be cleared before a tribal tax can take effect, and in this case the severance tax was enacted in accordance with this congressional scheme. Pp. 154-156. (b) Even if judicial scrutiny under the Commerce Clause were necessary, the challenged tax would survive such scrutiny. The tax does not discriminate against interstate commerce since it is imposed on minerals either sold on the reservation or transported off the reservation before sale. And the exemption for minerals received by the Tribe as in-kind payments on the leases and used for tribal purposes merely avoids the administrative make-work that would ensue if the Tribe taxed the minerals that it, as a commercial partner, received in royalty payments, and thus cannot be deemed a discriminatory preference for local commerce. Pp. 156-158. 617 F.2d 537, 10th Cir., affirmed. Jason W. Kellahin, Santa Fe, N.M., for petitioners in 80-11. John R. Cooney, Albuquerque, N.M., for petitioners in 80-15. Robert J. Nordhaus, Albuquerque, N.M., and Louis F. Claiborne, Washington, D.C., for respondents. Justice MARSHALL delivered the opinion of the Court. 1 Pursuant to long-term leases with the Jicarilla Apache Tribe, petitioners, 21 lessees, extract and produce oil and gas from the Tribe's reservation lands. In these two consolidated cases, petitioners challenge an ordinance enacted by the Tribe imposing a severance tax on "any oil and natural gas severed, saved and removed from Tribal lands." See Oil and Gas Severance Tax No. 77-0-02, App. 38. We granted certiorari to determine whether the Tribe has the authority to impose this tax, and, if so, whether the tax imposed by the Tribe violates the Commerce Clause. 2 * The Jicarilla Apache Tribe resides on a reservation in northwestern New Mexico. Established by Executive Order in 1887,1 the reservation contains 742,315 acres, all of which are held as tribal trust property. The 1887 Executive Order set aside public lands in the Territory of New Mexico for the use and occupation of the Jicarilla Apache Indians, and contained no special restrictions except for a provision protecting pre-existing rights of bona fide settlers.2 Approximately 2,100 individuals live on the reservation, with the majority residing in the town of Dulce, N.M., near the Colorado border. 3 The Tribe is organized under the Indian Reorganization Act of 1934, ch. 576, 48 Stat. 984, 25 U.S.C. §§ 461 et seq., which authorizes any tribe residing on a reservation to adopt a constitution and bylaws, subject to the approval of the Secretary of the Interior (Secretary).3 The Tribe's first Constitution, approved by the Secretary on August 4, 1937, preserved all powers conferred by § 16 of the Indian Reorganization Act of 1934, ch. 576, 48 Stat. 987, 25 U.S.C. § 476. In 1968, the Tribe revised its Constitution to specify: 4 "The inherent powers of the Jicarilla Apache Tribe, including those conferred by Section 16 of the Act of June 18, 1934 (48 Stat. 984), as amended, shall vest in the tribal council and shall be exercised thereby subject only to limitations imposed by the Constitution of the United States, applicable Federal statutes and regulations of the Department of the Interior, and the restrictions established by this revised constitution." Revised Constitution of the Jicarilla Apache Tribe, Art. XI, § 1. 5 The Revised Constitution provides that "[t]he tribal council may enact ordinances to govern the development of tribal lands and other resources," Art. XI, § 1(a)(3). It further provides that "[t]he tribal council may levy and collect taxes and fees on tribal members, and may enact ordinances, subject to approval by the Secretary of the Interior, to impose taxes and fees on non-members of the tribe doing business on the reservation," Art. XI, § 1(e). The Revised Constitution was approved by the Secretary on February 13, 1969. 6 To develop tribal lands, the Tribe has executed mineral leases encompassing some 69% of the reservation land. Beginning in 1953, the petitioners entered into leases with the Tribe. The Commissioner of Indian Affairs, on behalf of the Secretary, approved these leases, as required by the Act of May 11, 1938, ch. 198, 52 Stat. 347, 25 U.S.C. §§ 396a-396g (1938 Act). In exchange for a cash bonus, royalties, and rents, the typical lease grants the lessee "the exclusive right and privilege to drill for, mine, extract, remove, and dispose of all the oil and natural gas deposits in or under" the leased land for as long as the minerals are produced in paying quantities. App. 22. Petitioners may use oil and gas in developing the lease without incurring the royalty. Id., at 24. In addition, the Tribe reserves the rights to use gas without charge for any of its buildings on the leased land, and to take its royalties in kind. Id., at 27-28. Petitioners' activities on the leased land have been subject to taxes imposed by the State of New Mexico on oil and gas severance and on oil and gas production equipment. Id., at 129. See Act of Mar. 3, 1927, ch. 299, § 3, 44 Stat. 1347, 25 U.S.C. § 398c (permitting state taxation of mineral production on Indian reservations) (1927 Act). 7 Pursuant to its Revised Constitution, the Tribal Council adopted an ordinance imposing a severance tax on oil and gasproduction on tribal land. See App. 38. The ordinance was approved by the Secretary, through the Acting Director of the Bureau of Indian Affairs, on December 23, 1976. The tax applies to "any oil and natural gas severed, saved and removed from Tribal lands. . . ." Ibid. The tax is assessed at the wellhead at $0.05 per million Btu's of gas produced and $0.29 per barrel of crude oil or condensate produced on the reservation, and it is due at the time of severance. Id., at 38-39. Oil and gas consumed by the lessees to develop their leases or received by the Tribe as in-kind royalty payments are exempted from the tax. Ibid.; Brief for Respondent Jicarilla Apache Tribe 59, n. 42. 8 In two separate actions, petitioners sought to enjoin enforcement of the tax by either the tribal authorities or the Secretary. The United States District Court for the District of New Mexico consolidated the cases, granted other lessees leave to intervene, and permanently enjoined enforcement of the tax. The District Court ruled that the Tribe lacked the authority to impose the tax, that only state and local authorities had the power to tax oil and gas production on Indian reservations, and that the tax violated the Commerce Clause. 9 The United States Court of Appeals for the Tenth Circuit, sitting en banc, reversed. 617 F.2d 537 (1980).4 The Court of Appeals reasoned that the taxing power is an inherent attribute of tribal sovereignty that has not been divested by any treaty or Act of Congress, including the 1927 Act, 25 U.S.C. § 398c. The court also found no Commerce Clause violation. We granted certiorari, 449 U.S. 820, 101 S.Ct. 71, 66 L.Ed.2d 21 (1980), and we now affirm the decision of the Court of Appeals. II 10 Petitioners argue, and the dissent agrees, that an Indian tribe's authority to tax non-Indians who do business on the reservation stems exclusively from its power to exclude such persons from tribal lands. Because the Tribe did not initially condition the leases upon the payment of a severance tax, petitioners assert that the Tribe is without authority to impose such a tax at a later time. We disagree with the premise that the power to tax derives only from the power to exclude. Even if that premise is accepted, however, we disagree with the conclusion that the Tribe lacks the power to impose the severance tax. A. 11 In Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980) (Colville), we addressed the Indian tribes' authority to impose taxes on non-Indians doing business on the reservation. We held that "[t]he power to tax transactions occurring on trust lands and significantly involving a tribe or its members is a fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or necessary implication of their dependent status." Id., at 152, 100 S.Ct. at 2080-81. The power to tax is an essential attribute of Indian sovereignty because it is a necessary instrument of self-government and territorial management. This power enables a tribal government to raise revenues for its essential services. The power does not derive solely from the Indian tribe's power to exclude non-Indians from tribal lands. Instead, it derives from the tribe's general authority, as sovereign, to control economic activity within its jurisdiction, and to defray the cost of providing governmental services by requiring contributions from persons or enterprises engaged in economic activities within that jurisdiction. See, e.g., Gibbons v. Ogden, 9 Wheat. 1, 199, 6 L.Ed. 23 (1824). 12 The petitioners avail themselves of the "substantial privilege of carrying on business" on the reservation. Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S. 425, 437, 100 S.Ct. 1223, 1231, 63 L.Ed.2d 510 (1980); Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444-445, 61 S.Ct. 246, 249-50, 85 L.Ed. 267 (1940). They benefit from the provision of police protection and other governmental services, as well as from " 'the advantages of a civilized society' " that are assured by the existence of tribal government. Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U.S. 207, 228, 100 S.Ct. 2109, 2122, 65 L.Ed.2d 66 (1980) (quoting Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 445, 99 S.Ct. 1813, 1819-20, 60 L.Ed.2d 336 (1979)). Numerous other governmental entities levy a general revenue tax similar to that imposed by the Jicarilla Tribe when they provide comparable services. Under these circumstances, there is nothing exceptional in requiring petitioners to contribute through taxes to the general cost of tribal government.5 Cf. Commonwealth Edison Co. v. Montana, 453 U.S. 609, 624-629, 101 S.Ct. 2946, 2957-2960, 69 L.Ed.2d 884 (1981); id., at 647, 101 S.Ct., at 2969 (BLACKMUN, J., dissenting); Mobil Oil Corp. v. Commissioner of Taxes, supra, 445 U.S. at 436-437, 100 S.Ct. at 1231. 13 As we observed in Colville, supra, the tribe's interest in levying taxes on nonmembers to raise "revenues for essential governmental programs . . . is strongest when the revenues are derived from value generated on the reservation by activities involving the Tribes and when the taxpayer is the recipient of tribal services." 447 U.S., at 156-157, 100 S.Ct., at 2082-83. This surely is the case here. The mere fact that the government imposing the tax also enjoys rents and royalties as the lessor of the mineral lands does not undermine the government's authority to impose the tax. See infra, at 145-148. The royalty payments from the mineral leases are paid to the Tribe in its role as partner in petitioners' commercial venture. The severance tax, in contrast, is petitioners' contribution "to the general cost of providing governmental services." Commonwealth Edison Co. v. Montana, supra, at 623, 101 S.Ct., at 2956. State governments commonly receive both royalty payments and severance taxes from lessees of mineral lands within their borders. 14 Viewing the taxing power of Indian tribes as an essential instrument of self-government and territorial management has been a shared assumption of all three branches of the Federal Government. Cf. Colville, supra, 447 U.S., at 153, 100 S.Ct., at 2081. In Colville, the Court relied in part on a 1934 opinion of the Solicitor for the Department of the Interior. In this opinion, the Solicitor recognized that, in the absence of congressional action to the contrary, the tribes' sovereign power to tax " 'may be exercised over members of the tribe and over nonmembers, so far as such nonmembers may accept privileges of trade, residence, etc., to which taxes may be attached as conditions.' " 447 U.S., at 153, 100 S.Ct., at 2081 (quoting Powers of Indian Tribes, 55 I.D. 14, 46 (1934)). Colville further noted that official executive pronouncements have repeatedly recognized that "Indian tribes possess a broad measure of civil jurisdiction over the activities of non-Indians on Indian reservation lands in which the tribes have a significant interest . . ., including jurisdiction to tax." 447 U.S., at 152-153, 100 S.Ct., at 2080-2081 (citing 23 Op.Atty.Gen. 214 (1900); 17 Op.Atty.Gen. 134 (1881); 7 Op.Atty.Gen. 174 (1855)).6 15 Similarly, Congress has acknowledged that the tribal power to tax is one of the tools necessary to self-government and territorial control. As early as 1879, the Senate Judiciary Committee acknowledged the validity of a tax imposed by the Chickasaw Nation on non-Indians legitimately within its territory: 16 "We have considered [Indian tribes] as invested with the right of self-government and jurisdiction over the persons and property within the limits of the territory they occupy, except so far as that jurisdiction has been restrained and abridged by treaty or act of Congress. Subject to the supervisory control of the Federal Government, they may enact the requisite legislation to maintain peace and good order, improve their condition, establish school systems, and aid their people in their efforts to acquire the arts of civilized life; and they undoubtedly possess the inherent right to resort to taxation to raise the necessary revenue for the accomplishment of these vitally important objects —a right not in any sense derived from the Government of the United States." S.Rep.No.698, 45th Cong., 3d Sess., 1-2 (1879) (emphasis added). 17 Thus, the views of the three federal branches of government, as well as general principles of taxation, confirm that Indian tribes enjoy authority to finance their governmental services through taxation of non-Indians who benefit from those services. Indeed, the conception of Indian sovereignty that this Court has consistently reaffirmed permits no other conclusion. As we observed in United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 711, 42 L.Ed.2d 706 (1975), "Indian tribes within 'Indian country' are a good deal more than 'private, voluntary organizations.' " They "are unique aggregations possessing attributes of sovereignty over both their members and their territory." Ibid. See, e.g., Worcester v. Georgia, 6 Pet. 515, 557, 8 L.Ed. 483 (1832); Iron Crow v. Oglala Sioux Tribe of Pine Ridge Reservation, 231 F.2d 89, 92, 99 (CA8 1956); Crabtree v. Madden, 54 F. 426, 428-429 (CA8 1893); Cohen, The Spanish Origin of Indian Rights in the Law of the United States, in The Legal Conscience 230, 234 (L. Cohen ed. 1960). Adhering to this understanding, we conclude that the Tribe's authority to tax non-Indians who conduct business on the reservation does not simply derive from the Tribe's power to exclude such persons, but is an inherent power necessary to tribal self-government and territorial management. 18 Of course, the Tribe's authority to tax nonmembers is subject to constraints not imposed on other governmental entities: the Federal Government can take away this power, and the Tribe must obtain the approval of the Secretary before any tax on nonmembers can take effect. These additional constraints minimize potential concern that Indian tribes will exercise the power to tax in an unfair or unprincipled manner, and ensure that any exercise of the tribal power to tax will be consistent with national policies. 19 We are not persuaded by the dissent's attempt to limit an Indian tribe's authority to tax non-Indians by asserting that its only source is the tribe's power to exclude such persons from tribal lands. Limiting the tribes' authority to tax in this manner contradicts the conception that Indian tribes are domestic, dependent nations, as well as the common understanding that the sovereign taxing power is a tool for raising revenue necessary to cover the costs of government. 20 Nor are we persuaded by the dissent that three early decisions upholding tribal power to tax nonmembers support this limitation. Post, at 175-183, discussing Morris v. Hitchcock, 194 U.S. 384, 24 S.Ct. 712, 48 L.Ed. 1030 (1904); Buster v. Wright, 135 F. 947 (CA8 1905), appeal dism'd, 203 U.S. 599, 27 S.Ct. 777, 51 L.Ed. 334 (1906); Maxey v. Wright, 3 Ind.T. 243, 247-250, 54 S.W. 807, 809 (Ct.App.Ind.T.), aff'd, 105 F. 1003 (CA8 1900). In discussing these cases, the dissent correctly notes that a hallmark of Indian sovereignty is the power to exclude non-Indians from Indian lands, and that this power provides a basis for tribal authority to tax. None of these cases, however, establishes that the authority to tax derives solely from the power to exclude. Instead, these cases demonstrate that a tribe has the power to tax nonmembers only to the extent the nonmember enjoys the privilege of trade or other activity on the reservation to which the tribe can attach a tax. This limitation on tribal taxing authority exists not because the tribe has the power to exclude nonmembers, but because the limited authority that a tribe may exercise over nonmembers does not arise until the nonmember enters the tribal jurisdiction. We do not question that there is a significant territorial component to tribal power: a tribe has no authority over a nonmember until the nonmember enters tribal lands or conducts business with the tribe. However, we do not believe that this territorial component to Indian taxing power, which is discussed in these early cases, means that the tribal authority to tax derives solely from the tribe's power to exclude nonmembers from tribal lands. 21 Morris v. Hitchcock, for example, suggests that the taxing power is a legitimate instrument for raising revenue, and that a tribe may exercise this power over non-Indians who receive privileges from the tribe, such as the right to trade on Indian land. In Morris, the Court approved a tax on cattle grazing and relied in part on a Report to the Senate by the Committee on the Judiciary, which found no legal defect in previous tribal tax legislation having "a twofold object—to prevent the intrusion of unauthorized persons into the territory of the Chickasaw Nation, and to raise revenue." 194 U.S., at 389, 24 S.Ct., at 714 (emphasis added). In Maxey v. Wright, the question of Indian sovereignty was not even raised: the decision turned on the construction of a treaty denying the Tribe any governing or jurisdictional authority over nonmembers. 3 Ind.T., at 247-248, 54 S.W., at 809.7 22 Finally, the decision in Buster v. Wright actually undermines the theory that the tribes' taxing authority derives solely from the power to exclude non-Indians from tribal lands. Under this theory, a non-Indian who establishes lawful presence in Indian territory could avoid paying a tribal tax by claiming that no residual portion of the power to exclude supports the tax. This result was explicitly rejected in Buster v. Wright. In Buster, deeds to individual lots in Indian territory had been granted to non-Indian residents, and cities and towns had been incorporated. As a result, Congress had expressly prohibited the Tribe from removing these non-Indian residents. Even though the ownership of land and the creation of local governments by non-Indians established their legitimate presence on Indian land, the court held that the Tribe retained its power to tax. The court concluded that "[n]either the United States, nor a state, nor any other sovereignty loses the power to govern the people within its borders by the existence of towns and cities therein endowed with the usual powers of municipalities, nor by the ownership nor occupancy of the land within its territorial jurisdiction by citizens or foreigners." 135 F., at 952 (emphasis added).8 This result confirms that the Tribe's authority to tax derives not from its power to exclude, but from its power to govern and to raise revenues to pay for the costs of government. 23 We choose not to embrace a new restriction on the extent of the tribal authority to tax, which is based on a questionable interpretation of three early cases. Instead, based on the views of each of the federal branches, general principles of taxation, and the conception of Indian tribes as domestic, dependent nations, we conclude that the Tribe has the authority to impose a severance tax on the mining activities of petitioners as part of its power to govern and to pay for the costs of self-government. B 24 Alternatively, if we accept the argument, advanced by petitioners and the dissent, that the Tribe's authority to tax derives solely from its power to exclude non-Indians from the reservation, we conclude that the Tribe has the authority to impose the severance tax challenged here. Nonmembers who lawfully enter tribal lands remain subject to the tribe's power to exclude them. This power necessarily includes the lesser power to place conditions on entry, on continued presence, or on reservation conduct, such as a tax on business activities conducted on the reservation. When a tribe grants a non-Indian the right to be on Indian land, the tribe agrees not to exercise its ultimate power to oust the non-Indian as long as the non-Indian complies with the initial conditions of entry. However, it does not follow that the lawful property right to be on Indian land also immunizes the non-Indian from the tribe's exercise of its lesser-included power to tax or to e other conditions on the non-Indian's conduct or continued presence on the reservation.9 A nonmember who enters the jurisdiction of the tribe remains subject to the risk that the tribe will later exercise its sovereign power. The fact that the tribe chooses not to exercise its power to tax when it initially grants a non-Indian entry onto the reservation does not permanently divest the tribe of its authority to impose such a tax.10 25 Petitioners argue that their leaseholds entitle them to enter the reservation and exempt them from further exercises of the Tribe's sovereign authority. Similarly, the dissent asserts that the Tribe has lost the power to tax petitioners' mining activities because it has leased to them the use of the mineral lands and such rights of access to the reservation as might be necessary to enjoy the leases. Post, at 186-190.11 However, this conclusion is not compelled by linking the taxing power to the power to exclude. Instead, it is based on additional assumptions and confusions about the consequences of the commercial arrangement between petitioners and the Tribe. 26 Most important, petitioners and the dissent confuse the Tribe's role as commercial partner with its role as sovereign.12 This confusion relegates the powers of sovereignty to the bargaining process undertaken in each of the sovereign's commercial agreements. It is one thing to find that the Tribe has agreed to sell the right to use the land and take from it valuable minerals; it is quite another to find that the Tribe has abandoned its sovereign powers simply because it has not expressly reserved them through a contract. 27 Confusing these two results denigrates Indian sovereignty. Indeed, the dissent apparently views the tribal power to exclude, as well as the derivative authority to tax, as merely the power possessed by any individual landowner or any social group to attach conditions, including a "tax" or fee, to the entry by a stranger onto private land or into the social group, and not as a sovereign power. The dissent does pay lipservice to the established views that Indian tribes retain those fundamental attributes of sovereignty, including the power to tax transactions that occur on tribal lands, which have not been divested by Congress or by necessary implication of the tribe's dependent status, see Colville, 447 U.S., at 152, 100 S.Ct., at 2080, and that tribes "are a good deal more than 'private, voluntary organizations.' " United States v. Mazurie, 419 U.S., at 557, 95 S.Ct., at 718. However, in arguing that the Tribe somehow "lost" its power to tax petitioners by not in cluding a taxing provision in the original leases or otherwise notifying petitioners that the Tribe retained and might later exercise its sovereign right to tax them, the dissent attaches little significance to the sovereign nature of the tribal authority to tax, and it obviously views tribal authority as little more than a landowner's contractual right. This overly restrictive view of tribal sovereignty is further reflected in the dissent's refusal to apply established principles for determining whether other governmental bodies have waived a sovereign power through contract. See post, at 189, n. 50. See also infra, at 148. 28 Moreover, the dissent implies that the power to tax depends on the consent of the taxed as well as on the Tribe's power to exclude non-Indians. Whatever place consent may have in contractual matters and in the creation of democratic governments, it has little if any role in measuring the validity of an exercise of legitimate sovereign authority. Requiring the consent of the entrant deposits in the hands of the excludable non-Indian the source of the tribe's power, when the power instead derives from sovereignty itself. Only the Federal Government may limit a tribe's exercise of its sovereign authority. E.g., United States v. Wheeler, 435 U.S. 313, 322, 98 S.Ct. 1079, 1085, 55 L.Ed.2d 303 (1978).13 Indian sovereignty is not conditioned on the assent of a nonmember; to the contrary, the nonmember's presence and conduct on Indian lands are conditioned by the limitations the tribe may choose to impose. 29 Viewed in this light, the absence of a reference to the tax in the leases themselves hardly impairs the Tribe's authority to impose the tax. Contractual arrangements remain subject to subsequent legislation by the presiding sovereign. See, e.g., Veix v. Sixth Ward Building & Loan Assn. of Newark, 310 U.S. 32, 60 S.Ct. 792, 84 L.Ed. 1061 (1940); Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934). Even where the contract at issue requires payment of a royalty for a license or franchise issued by the governmental entity, the government's power to tax remains unless it "has been specifically surrendered in terms which admit of no other reasonable interpretation." St. Louis v. United R. Co., 210 U.S. 266, 280, 28 S.Ct. 630, 634, 52 L.Ed. 1054 (1908). 30 To state that Indian sovereignty is different than that of Federal, State, or local Governments, see post, at 189, n. 50, does not justify ignoring the principles announced by this Court for determining whether a sovereign has waived its taxing authority in cases involving city, state, and federal taxes imposed under similar circumstances. Each of these governments has different attributes of sovereignty, which also may derive from different sources. These differences, however, do not alter the principles for determining whether any of these governments has waived a sovereign power through contract, and we perceive no principled reason for holding that the different attributes of Indian sovereignty require different treatment in this regard. Without regard to its source, sovereign power, even when unexercised, is an enduring presence that governs all contracts subject to the sovereign's jurisdiction, and will remain intact unless surrendered in unmistakable terms. 31 No claim is asserted in this litigation, nor could one be, that petitioners' leases contain the clear and unmistakable surrender of taxing power required for its extinction. We could find a waiver of the Tribe's taxing power only if we inferred it from silence in the leases. To presume that a sovereign forever waives the right to exercise one of its sovereign powers unless it expressly reserves the right to exercise that power in a commercial agreement turns the concept of sovereignty on its head, and we do not adopt this analysis.14 C 32 The Tribe has the inherent power to impose the severance tax on petitioners, whether this power derives from the Tribe's power of self-government or from its power to exclude. Because Congress may limit tribal sovereignty, we now review petitioners' argument that Congress, when it enacted two federal Acts governing Indians and various pieces of federal energy legislation, deprived the Tribe of its authority to impose the severance tax. 33 In Colville, we concluded that the "widely held understanding within the Federal Government has always been that federal law to date has not worked a divestiture of Indian taxing power." 447 U.S., at 152, 100 S.Ct., at 2080 (emphasis added). Moreover, we noted that "[n]o federal statute cited to us shows any congressional departure from this view." Id., at 153, 100 S.Ct., at 2081. Likewise, petitioners can cite to no statute that specifically divests the Tribe of its power to impose the severance tax on their mining activities. Instead, petitioners argue that Congress implicitly took away this power when it enacted the Acts and various pieces of legislation on which petitioners rely. Before reviewing this argument, we reiterate here our admonition in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 60, 98 S.Ct. 1670, 1678, 56 L.Ed.2d 106 (1978): "a proper respect both for tribal sovereignty itself and for the plenary authority of Congress in this area cautions that we tread lightly in the absence of clear indications of legislative intent." [24] Petitioners argue that Congress pre-empted the Tribe's power to impose a severance tax when it enacted the 1938 Act, 25 U.S.C. §§ 396a-396g. In essence, petitioners argue that the tax constitutes an additional burden on lessees that is inconsistent with the Act's regulatory scheme for leasing and developing oil and gas reserves on Indian land. This Act, and the regulations promulgated by the Department of the Interior for its enforcement, establish the procedures to be followed for leasing oil and gas interests on tribal lands. However, the proviso to 25 U.S.C. § 396b states that "the foregoing provisions shall in no manner restrict the right of tribes . . . to lease lands for mining purposes . . . in accordance with the provisions of any constitution and charter adopted by any Indian tribe pursuant to sections 461, 462, 463, [464-475, 476-478], and 479 of this title" (emphasis added).15 Therefore, this Act does not prohibit the Tribe from imposing a severance tax on petitioners' mining activities pursuant to its Revised Constitution, when both the Revised Constitution and the ordinance authorizing the tax are approved by the Secretary.16 34 Petitioners also assert that the 1927 Act, 25 U.S.C. §§ 398a-398e, divested the Tribe's taxing power. We disagree. The 1927 Act permits state taxation of mineral lessees on Executive Order reservations, but it indicates no change in the taxing power of the affected tribes. See 25 U.S.C. § 398c. Without mentioning the tribal authority to tax, the Act authorizes state taxation of royalties from mineral production on all Indian lands. Petitioners argue that the Act transferred the Indian power to tax mineral production to the States in exchange for the royalties assured the tribes. This claim not only lacks any supporting evidence in the legislative history, it also deviates from settled principles of taxation: different sovereigns can enjoy powers to tax the same transactions. Thus, the mere existence of state authority to tax does not deprive the Indian tribe of its power to tax. Fort Mojave Tribe v. County of San Bernardino, 543 F.2d 1253 (CA9 1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1678, 52 L.Ed.2d 377 (1977). Cf. Colville, 447 U.S., at 158, 100 S.Ct., at 2084 ("There is no direct conflict between the state and tribal schemes, since each government is free to impose its taxes without ousting the other").17 35 Finally, petitioners contend that tribal taxation of oil and gas conflicts with national energy policies, and therefore the tribal tax is pre-empted by federal law. Again, petitioners cite no specific federal statute restricting Indian sovereignty. Nor do they explain why state taxation of the same type of activity escapes the asserted conflict with federal policy. Cf. Commonwealth Edison Co. v. Montana, 453 U.S. 609, 101 S.Ct. 2946, 69 L.Ed.2d 884 (1981). Indeed, rather than forbidding tribal severance taxes, Congress has included taxes imposed by an Indian tribe in its definition of costs that may be recovered under federal energy pricing regulations. Natural Gas Policy Act of 1978, Pub.L. 95-621, §§ 110(a), (c)(1), 92 Stat. 3368, 15 U.S.C. §§ 3320(a), (c)(1) (1976 ed., Supp.IV). Although this inclusion may not reflect Congress' view with respect to the source of a tribe's power to impose a severance tax,18 it surely indicates that imposing such a tax would not contravene federal energy policy and that the tribal authority to do so is not implicitly divested by that Act. 36 We find no "clear indications" that Congress has implicitly deprived the Tribe of its power to impose the severance tax. In any event, if there were ambiguity on this point, the doubt would benefit the Tribe, for "[a]mbiguities in federal law have been construed generously in order to comport with . . . traditional notions of sovereignty and with the federal policy of encouraging tribal independence." White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143-144, 100 S.Ct. 2578, 2583-2584, 65 L.Ed.2d 665 (1980). Accordingly, we find that the Federal Government has not divested the Tribe of its inherent authority to tax mining activities on its land, whether this authority derives from the Tribe's power of self-government or from its power to exclude. III 37 Finding no defect in the Tribe's exercise of its taxing power, we now address petitioners' contention that the severance tax violates the "negative implications" of the Commerce Clause because it taxes an activity that is an integral part of the flow of commerce, discriminates against interstate commerce, and imposes a multiple burden on interstate commerce. At the outset, we note that reviewing tribal action under the Interstate Commerce Clause is not without conceptual difficulties. E.g., nn. 21 and 24, infra. Apparently recognizing these difficulties, the Solicitor General, on behalf of the Secretary, argues that the language,19 the structure, and the purposes of the Commerce Clause support the conclusion that the Commerce Clause does not, of its own force, limit Indian tribes in their dealings with non-Indians. Brief for Secretary of Interior 35-40. The Solicitor General reasons that the Framers did not intend "the courts, through the Commerce Clause, to impose their own views of the proper relationship between Indians and non-Indians and to strike down measures adopted by a tribe with which the political departments of government had not seen fit to disagree." Id., at 39. Instead, where tribal legislation is inimical to the national welfare, the Solicitor asserts that the Framers contemplated that the remedies would be the negotiation or renegotiation of treaties, the enactment of legislation governing trade and other relations, or the exertion of superior force by the United States Government. Id., at 38-39. Using similar reasoning, the Solicitor suggests that if the Commerce Clause does impose restrictions on tribal activity, those restrictions must arise from the Indian Commerce Clause, and not its interstate counterpart. Id., at 40-43. 38 To date, however, this Court has relied on the Indian Commerce Clause as a shield to protect Indian tribes from state and local interference, and has not relied on the Clause to authorize tribal regulation of commerce without any constitutional restraints. We see no need to break new ground in this area today: even if we assume that tribal action is subject to the limitations of the Interstate Commerce Clause, this tax does not violate the "negative implications" of that Clause. A. 39 A state tax may violate the "negative implications" of the Interstate Commerce Clause by unduly burdening or discriminating against interstate commerce. See, e.g., Commonwealth Edison Co. v. Montana, 453 U.S. 609, 101 S.Ct. 2946, 69 L.Ed.2d 884 (1981); Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977). Judicial review of state taxes under the Interstate Commerce Clause is intended to ensure that States do not disrupt or burden interstate commerce when Congress' power remains unexercised: it protects the free flow of commerce, and thereby safeguards Congress' latent power from encroachment by the several States. 40 However, we only engage in this review when Congress has not acted or purported to act. See, e.g., Prudential Insurance Co. v. Benjamin, 328 U.S. 408, 421-427, 66 S.Ct. 1142, 1150-1153, 90 L.Ed. 1342 (1946). Once Congress acts, courts are not free to review state taxes or other regulations under the dormant Commerce Clause. When Congress has struck the balance it deems appropriate, the courts are no longer needed to prevent States from burdening commerce, and it matters not that the courts would invalidate the state tax or regulation under the Commerce Clause in the absence of congressional action. See Prudential Insurance Co. v. Benjamin, supra, at 431, 66 S.Ct. at 1155-56.20 Courts are final arbiters under the Commerce Clause only when Congress has not acted. See Japan Line, Ltd. v. County of Los Angeles, 441 U.S., at 454, 99 S.Ct., at 1824. 41 Here, Congress has affirmatively acted by providing a series of federal checkpoints that must be cleared before a tribal tax can take effect.21 Under the Indian Reorganization Act, 25 U.S.C. §§ 476, 477, a tribe must obtain approval from the Secretary before it adopts or revises its constitution to announce its intention to tax nonmembers. Further, before the ordinance imposing the severance tax challenged here could take effect, the Tribe was required again to obtain approval from the Secretary. See Revised Constitution of the Jicarilla Tribe, Art. XI, §§ 1(e), 2. Cf. 25 U.S.C. §§ 476, 477; 25 CFR § 171.29 (1980) (implementing the proviso to 25 U.S.C. § 369b, quoted in n. 15, supra). 42 As we noted earlier, the severance tax challenged by petitioners was enacted in accordance with this congressional scheme. Both the Tribe's Revised Constitution and the challenged tax ordinance received the requisite approval from the Secretary. This course of events fulfilled the administrative process established by Congress to monitor such exercises of tribal authority. As a result, this tribal tax comes to us in a posture significantly different from a challenged state tax, which does not need specific federal approval to take effect, and which therefore requires, in the absence of congressional ratification, judicial review to ensure that it does not unduly burden or discriminate against interstate commerce. Judicial review of the Indian tax measure, in contrast, would duplicate the administrative review called for by the congressional scheme. 43 Finally, Congress is well aware that Indian tribes impose mineral severance taxes such as the one challenged by petitioners. See Natural Gas Policy Act of 1978, 15 U.S.C. §§ 3320(a), (c)(1) (1976 ed., Supp.IV). Congress, of course, retains plenary power to limit tribal taxing authority or to alter the current scheme under which the tribes may impose taxes. However, it is not our function nor our prerogative to strike down a tax that has traveled through the precise channels established by Congress, and has obtained the specific approval of the Secretary. B 44 The tax challenged here would survive judicial scrutiny under the Interstate Commerce Clause, even if such scrutiny were necessary. In Complete Auto Transit, Inc. v. Brady, supra, 430 U.S. at 279, 97 S.Ct. at 1079, we held that a state tax on activities connected to interstate commerce is sustainable if it "is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State." Petitioners do not question that the tax on the severance of minerals from the mines22 meets the first and the second tests: the mining activities taxed pursuant to the ordinance occur entirely on reservation land. Furthermore, petitioners do not challenge the tax on the ground that the amount of the tax is not fairly related to the services provided by the Tribe. See Supplemental Brief for Petitioners in No. 80-15, pp. 11, 17-20.23 45 Instead, petitioners focus their attack on the third factor, and argue that the tax discriminates against interstate commerce. In essence, petitioners argue that the language "sold or transported off the reservation" exempts from taxation minerals sold on the reservation, kept on the reservation for use by individual members of the Tribe, and minerals taken by the Tribe on the reservation as in-kind royalty. Although petitioners admit that no sales have occurred on the reservation to date, they argue that the Tribe might induce private industry to locate on the reservation to take advantage of this allegedly discriminatory taxing policy. We do not accept petitioners' arguments; instead, we agree with the Tribe, the Solicitor General, and the Court of Appeals that the tax is imposed on minerals sold on the reservation or transported off the reservation before sale. See 617 F.2d, at 546. Cf. n. 22, supra.24 Under this interpretation, the tax does not treat minerals transported away from the reservation differently than it treats minerals that might be sold on the reservation. Nor does the Tribe's tax ordinance exempt minerals ultimately received by individual members of the Tribe. The ordinance does exempt minerals received by the Tribe as in-kind payments on the leases and used for tribal purposes,25 but this exemption merely avoids the administrative make-work that would ensue if the Tribe, as local government, taxed the amount of minerals that the Tribe, as commercial partner, received in royalty payments. Therefore, this exemption cannot be deemed a discriminatory preference for local commerce.26 IV 46 In Worcester v. Georgia, 6 Pet., at 559, 8 L.Ed. 483, Chief Justice Marshall observed that Indian tribes had "always been considered as distinct, independent political communities, retaining their original natural rights." Although the tribes are subject to the authority of the Federal Government, the "weaker power does not surrender its independence—its right to self-government, by associating with a stronger, and taking its protection." Id., at 561, 8 L.Ed. 483. Adhering to this understanding, we conclude that the Tribe did not surrender its authority to tax the mining activities of petitioners, whether this authority is deemed to arise from the Tribe's inherent power of self-government or from its inherent power to exclude nonmembers. Therefore, the Tribe may enforce its severance tax unless and until Congress divests this power, an action that Congress has not taken to date. Finally, the severance tax imposed by the Tribe cannot be invalidated on the ground that it violates the "negative implications" of the Commerce Clause. 47 Affirmed. 48 Justice STEVENS, with whom THE CHIEF JUSTICE and Justice REHNQUIST join, dissenting. 49 The Indian tribes that occupied North America before Europeans settled the continent were unquestionably sovereigns. They ruled themselves and they exercised dominion over the lands that nourished them. Many of those tribes, and some attributes of their sovereignty, survive today. This Court, since its earliest days, has had the task of identifying those inherent sovereign powers that survived the creation of a new Nation and the introduction of an entirely new system of laws applicable to both Indians and non-Indians. 50 In performing that task, this Court has guarded carefully the unique status of Indian tribes within this Nation. Over its own members, an Indian tribe's sovereign powers are virtually unlimited; the incorporation of the tribe into the United States has done little to change internal tribal relations. In becoming part of the United States, however, the tribes yielded their status as independent nations; Indians and non-Indians alike answered to the authority of a new Nation, organized under a new Constitution based on democratic principles of representative government. In that new system of government, Indian tribes were afforded no general powers over citizens of the United States. Many tribes, however, were granted a power unknown to any other sovereignty in this Nation: a power to exclude nonmembers entirely from territory reserved for the tribe. Incident to this basic power to exclude, the tribes exercise limited powers of governance over nonmembers, though those nonmembers have no voice in tribal government. Since a tribe may exclude nonmembers entirely from tribal territory, the tribe necessarily may impose conditions on a right of entry granted to a nonmember to do business on the reservation. 51 The question presented in these cases is whether, after a tribe has granted nonmembers access to its reservation on specified terms and conditions to engage in an economic venture of mutual benefit, the tribe may impose a tax on the nonmembers' share of benefits derived from the venture. The Court today holds that it may do so. In my opinion this holding distorts the very concept of tribal sovereignty. Because I am convinced that the Court's treatment of these important cases gives inadequate attention to the critical difference between a tribe's powers over its own members and its powers over nonmembers, I set forth my views at greater length than is normally appropriate in a dissenting opinion. 52 * The 2,100 members of the Jicarilla Apache Tribe live on a reservation in northern New Mexico.1 The area encompassed by the reservation became a part of the United States in 1848 when the Mexican War ended in the Treaty of Guadalupe Hidalgo. See 9 Stat. 922. Between 1848 and 1871, the United States did not enter into any treaty with the Jicarillas or enact any special legislation relating to them; in 1871 Congress outlawed any future treaties with Indian tribes.2 In 1887, President Cleveland issued an Executive Order setting aside a tract of public lands in the Territory of New Mexico "as a reservation for the use and occupation of the Jicarilla Apache Indians." Except for a provision protecting bona fide settlers from deprivation of previously acquired rights, the Executive Order contained no special rules applicable to the reservation.3 The mineral leases at issue in this case were granted by the Jicarilla Apache Tribe on these reservation lands. 53 The record does not indicate whether any leasing activity occurred on the Jicarilla Reservation between 1887 and 1953. During that period, however, the authority of Indian tribes to enter into mineral leases was clarified. In 1891 Congress passed a statute permitting the mineral leasing of Indian lands. Act of Feb. 28, 1891, § 3, 26 Stat. 795, 25 U.S.C. § 397. Because the statute applied only to lands "occupied by Indians who have bought and paid for the same," the statute was interpreted to be inapplicable to reservations created by Executive Order. See British-American Oil Producing Co. v. Board of Equalization, 299 U.S. 159, 161-162, 164, 57 S.Ct. 132, 133, 134, 81 L.Ed. 95. In 1922, the Secretary of the Interior took the position that Indian reservations created by Executive Order were public lands and that Indians residing on those reservations had no right to share in royalties derived from oil and gas leases. 49 I.D. 139.4 54 In 1927 Congress enacted a statute expressly providing that unallotted lands on any Indian reservation created by Executive Order could be leased for oil and gas mining purposes with the approval of the Secretary of the Interior.5 The statute directed that all rentals, royalties, or bonuses for such leases should be paid to the Treasurer of the United States for the benefit of the tribe for which the reservation was created.6 The statute further provided that state taxes could be levied upon the output of such oil and gas leases,7 but made no mention of the possibility that the Indian tribes, in addition to receiving royalties, could impose taxes on the output.8 55 In 1934, Congress enacted the Indian Reorganization Act, 48 Stat. 984, 25 U.S.C. § 461 et seq., which authorized any Indian tribe residing on a reservation to adopt a constitution and bylaws, subject to the approval of the Secretary of the Interior. The Act provided that, "[i]n addition to all powers vested in any Indian tribe or tribal council by existing law," the constitution should vest certain specific powers, such as the power to employ legal counsel, in the tribe.9 The Act also authorized the Secretary of the Interior to issue a charter of incorporation to an Indian tribe, and provided that the charter could convey to the tribe the power to purchase, manage, and dispose of its property.10 The 1934 Act was silent concerning the right of an Indian tribe to levy taxes.11 The first Jicarilla Apache Constitution was approved by the Secretary of the Interior in 1937.12 56 In 1953, the Tribe executed an oil and gas lease with the Phillips Petroleum Co. App. 22-30. The lease, prepared on a form provided by the Bureau of Indian Affairs of the Department of the Interior, presumably is typical of later leases executed between other companies and the Tribe.13 The lease provides that in return for certain rents, royalties, and a cash bonus of $71,345.99, all to be paid to the treasurer of the Tribe, the Tribe as lessor granted to the lessee "the exclusive right and privilege to drill for, mine, extract, remove, and dispose of all the oil and natural gas deposits in or under" the described tracts of land, together with the right to construct and maintain buildings, plants, tanks, and other necessary structures on the surface. Id., at 22-23. The lease is for a term of 10 years following approval by the Secretary of the Interior "and as much longer thereafter as oil and/or gas is produced in paying quantities from said land." Ibid. The lessee is obligated to use reasonable diligence in the development of the property, and to pay an annual rental of $1.25 per acre and a royalty of 121/2% "of the value or amount" of all oil and gas "produced and saved" from the leased land. Id., at 24, 26. Oil and gas used by the lessee for development and operation of the lease is royalty-free. Id., at 24. The Tribe reserved the rights to use free of charge sufficient gas for any school or other building owned by the Tribe on the leased premises, and to take its royalty in kind. Id., at 27-28. 57 The lease contains no reference to the payment of taxes. The lessee does, however, agree to comply with all regulations of the Secretary of the Interior 58 "now or hereafter in force relative to such leases: Provided, That no regulation hereafter approved shall effect a change in rate or royalty or annual rental herein specified without the written consent of the parties to this lease." Id., at 27. 59 The lease was approved by the Commissioner of Indian Affairs on behalf of the Secretary of the Interior. Id., at 32. Both of the 1953 leases described in the record are still producing. 60 In 1968, the Tribe adopted a Revised Constitution giving its Tribal Council authority, subject to approval by the Secretary of the Interior, "to impose taxes and fees on non-members of the tribe doing business on the reservation."14 Eight years later, the Tribal Council enacted an Oil and Gas Severance Tax Ordinance, which was approved by the Secretary of the Interior. The tribal ordinance provides that a severance tax "is imposed on any oil and natural gas severed, saved and removed from Tribal lands. . . ." Id., at 38. The rate of the tax is $.05 per million Btu's of gas produced on the reservation and sold or transported off the reservation and $0.29 per barrel of crude or condensate produced on the reservation and sold or transported off the reservation. Id., at 39. Royalty gas or oil taken by the Tribe, as well as gas or oil used by the Tribe, is exempt from the tax. Ibid. Thus the entire burden of the tax apparently will fall on nonmembers of the Tribe. The tax, if sustained, will produce over $2 million in revenues annually.15 II 61 The powers possessed by Indian tribes stem from three sources: federal statutes, treaties, and the tribe's inherent sovereignty. Neither the Tribe nor the Federal Government seeks to justify the Jicarilla Tribe's severance tax on the basis of any federal statute,16 and the Jicarilla Apaches, who reside on an Executive Order reservation, executed no treaty with the United States from which they derive sovereign powers. Therefore, if the severance tax is valid, it must be as an exercise of the Tribe's inherent sovereignty. 62 Tribal sovereignty is neither derived from nor protected by the Constitution.17 Indian tribes have, however, retained many of the powers of self-government that they possessed at the time of their incorporation into the United States. As stated by Justice M'Lean in Worcester v. Georgia, 6 Pet. 515, 580, 8 L.Ed. 483 (concurring opinion): 63 "At no time has the sovereignty of the country been recognised as existing in the Indians, but they have been always admitted to possess many of the attributes of sovereignty. All the rights which belong to self-government have been recognised as vested in them." Similarly, the Court in United States v. Kagama, 118 U.S. 375, 381-382, 6 S.Ct. 1109, 1112-13, 30 L.Ed. 228, stated: 64 "[The Indians] were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided." 65 Two distinct principles emerge from these early statements of tribal sovereignty: that Indian tribes possess broad powers of self-governance over tribal members, but that tribes do not possess the same attributes of sovereignty that the Federal Government and the several States enjoy.18 In determining the extent of the sovereign powers that the tribes retained in submitting to the authority of the United States, this Court has recognized a fundamental distinction between the right of the tribes to govern their own internal affairs and the right to exercise powers affecting nonmembers of the tribe. 66 The Court has been careful to protect the tribes from interference with tribal control over their own members. The Court has recognized that tribes have the power to prosecute members for violations of tribal criminal law, and that this power is an inherent attribute of tribal sovereignty. United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303. The tribes also retain the power to create substantive law governing internal tribal affairs. Tribes may define rules of membership, and thus determine who is entitled to the benefits of tribal citizenship, Roff v. Burney, 168 U.S. 218, 18 S.Ct. 60, 42 L.Ed. 442; establish rules of inheritance, which supersede applicable state law, Jones v. Meehan, 175 U.S. 1, 29, 20 S.Ct. 1, 12, 44 L.Ed. 49; and determine rights to custody of a child of divorced parents of the tribe, and thus pre-empt adoption proceedings brought in state court. Fisher v. District Court, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106. This substantive tribal law may be enforced in tribal courts. Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251; Fisher v. District Court, supra. 67 In many respects, the Indian tribes' sovereignty over their own members is significantly greater than the States' powers over their own citizens. Tribes may enforce discriminatory rules that would be intolerable in a non-Indian community. The equal protection components of the Fifth and Fourteenth Amendments, which limit federal or state authority, do not similarly limit tribal power. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56, and n. 7, 98 S.Ct. 1670, 1675, and n. 7, 56 L.Ed.2d 106.19 The criminal jurisdiction of the tribes over their own members is similarly unconstrained by constitutional limitations applicable to the States and the Federal Government.20 Thus the use of the word "sovereign" to characterize tribal powers of self-government is surely appropriate. 68 In sharp contrast to the tribes' broad powers over their own members, tribal powers over nonmembers have always been narrowly confined.21 The Court has emphasized that "exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation." Montana v. United States, 450 U.S. 544, 564, 101 S.Ct. 1245, 1257, 67 L.Ed.2d 493. In Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209, the Court held that tribes have no criminal jurisdiction over crimes committed by nonmembers within the reservations.22 In Montana v. United States, supra, the Court held that the Crow Tribe could not prohibit hunting and fishing by nonmembers on reservation land no longer owned by the Tribe, and indicated that the principle underlying Oliphant —that tribes possess limited power over nonmembers—was applicable in a civil as well as a criminal context. As stated by the Court, "[t]hough Oliphant only determined inherent tribal authority in criminal matters, the principles on which it relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." Montana v. United States, supra, at 565, 101 S.Ct., at 1258 (footnote omitted).23 69 The tribes' authority to enact legislation affecting nonmembers is therefore of a different character than their broad power to control internal tribal affairs. This difference is consistent with the fundamental principle that "[i]n this Nation each sovereign governs only with the consent of the governed." Nevada v. Hall, 440 U.S. 410, 426, 99 S.Ct. 1182, 1191, 59 L.Ed.2d 416. Since nonmembers are excluded from participation in tribal government, the powers that may be exercised over them are appropriately limited. Certainly, tribal authority over nonmembers—including the power to tax—is not unprecedented. An examination of cases that have upheld this power, however, demonstrates that the power to impose such a tax derives solely from the tribes' power to exclude nonmembers entirely from territory that has been reserved for the tribe. This "power to exclude" logically has been held to include the lesser power to attach conditions on a right of entry granted by the tribe to a nonmember to engage in particular activities within the reservation. III 70 A study of the source of the tribes' power to tax nonmembers must focus on the extent of the tribal power to tax that existed in 1934, when the Indian Reorganization Act was enacted to prevent further erosion of Indian sovereign powers.24 Shortly after the Act was passed, the Solicitor of the Department of the Interior issued a formal opinion setting forth his understanding of the powers that might be secured by an Indian tribe and incorporated in its constitution by virtue of the reference in the Reorganization Act to powers vested in an Indian tribe "by existing law."25 Solicitor Margold concluded that among those powers was a power of taxation; his opinion described the permissible exercise of that power: 71 "Except where Congress has provided otherwise, this power may be exercised over members of the tribe and over nonmembers, so far as such nonmembers may accept privileges of trade, residence, etc., to which taxes may be attached as conditions." 55 I. D. 14, 46 (1934). 72 Solicitor Margold cited three decisions in support of this opinion. These three cases, Buster v. Wright, 135 F. 947 (CA8 1905), appeal dism'd, 203 U.S. 599, 27 S.Ct. 777, 51 L.Ed. 334; Morris v. Hitchcock, 194 U.S. 384, 24 S.Ct. 712, 48 L.Ed. 1030; and Maxey v. Wright, 3 Ind.T. 243, 54 S.W. 807 (Ct.App.Ind.T.), aff'd, 105 F. 1003 (CA8 1900), were decided shortly after the turn of the century and are the three leading cases considering the power of an Indian tribe to assess taxes against nonmembers.26 The three cases are similar in result and in their reasoning. In each the court upheld the tax; in each the court relied on the Tribe's power to exclude non-Indians from its reservation and concluded that the Tribe could condition entry or continued presence within the reservation on the payment of a license fee or tax; and in each the court assumed that the ultimate remedy for nonpayment of the tax would be exclusion from the reservation. 73 In the first of these cases, Maxey v. Wright, the Court of Appeals of Indian Territory affirmed an order by a federal territorial court dismissing a complaint filed by non-Indian lawyers practicing in the Creek Nation. The complaint sought to enjoin the Indian agent for the Five Civilized Tribes from collecting an annual occupation tax of $25 assessed on each non-Indian lawyer residing and practicing his profession on the reservation. In rejecting the attorneys' claim, the Court of Appeals first analyzed the relevant treaties between the United States and the Creeks and noted that the Indians had "carefully guarded their sovereignty, and their right to admit, and consequently to exclude, all white persons, except such as are named in the treaty." 3 Ind.T., at 247, 54 S.W., at 809. The court noted that the United States had agreed that all persons who were not expressly excepted and were present in the Creek Nation "without the consent of that Nation [were] deemed to be intruders," and that the Government had "pledge[d] itself to remove them." Id., at 248, 54 S.W., at 809. Because attorneys were not within any excepted class,27 the court concluded that the Tribe had the authority to require them either to pay the license fee or to be removed as "intruders."28 The court held: "[T]he Creek nation had the power to impose this condition or occupation tax, if it may be so called, upon attorneys at law (white men) residing and practicing their profession in the Indian Territory. And inasmuch as the government of the United States, in the treaty, had declared that all persons not authorized by its terms to reside in the Creek Nation should be deemed to be intruders, and had obligated itself to remove all such persons from the Creek Nation, the remedy to enforce this provision of the treaty was a removal by the United States from the Creek Nation of the delinquent as an intruder." 3 Ind.T., at 250, 54 S.W., at 809-810.29 74 Morris v. Hitchcock, 194 U.S. 384, 24 S.Ct. 712, 48 L.Ed. 1030, decided by this Court in 1904, also arose from a challenge to an enactment of one of the Five Civilized Tribes that required non-Indians to pay annual permit fees. The complainants owned cattle and horses that were grazing on land in the Chickasaw Nation pursuant to contracts with individual members of the Tribe. Complainants filed suit in the District of Columbia seeking an injunction preventing federal officials from removing their cattle and horses from the Indian Territory for failure to pay the permit fees assessed by the Tribe. An order dismissing the complaint was affirmed by the Court of Appeals for the District of Columbia and by this Court. 75 This Court's opinion first noted that treaties between the United States and the Chickasaw Nation had granted the Tribe the right "to control the presence within the territory assigned to it of persons who might otherwise be regarded as intruders,"30 and that the United States had assumed the obligation of protecting the Indians from aggression by persons not subject to their jurisdiction. Id., at 389, 24 S.Ct., at 714. The Court then reviewed similar legislation that had been adopted by the Chickasaw Nation in 1876,31 and noted that in 1879 the Senate Committee on the Judiciary had specifically referred to the 1876 legislation and expressed an opinion that it was valid. Id., at 389-390, 24 S.Ct., at 714-15. 76 The Court also reviewed two opinions of the Attorney General that had concluded that the power of the Chickasaw to impose permit fees had not been withdrawn by Congress.32 Although Congress subsequently had created an express exception in favor of owners of town lots and thus protected them from eviction as intruders, the Court noted that no comparable protection had been given to owners of cattle and horses. Id., at 392-393, 24 S.Ct., at 715-716. On the basis of these authorities, the Court concluded that the Chickasaw legislation imposing grazing fees was valid. 77 In the third case, Buster v. Wright, 135 F. 947 (CA8 1905), nonmembers of the Creek Nation brought suit against federal inspectors to enjoin them from stopping the plaintiffs from doing business within the reservation; the nonmembers feared such action because they had refused to pay a permit tax assessed on traders by the Tribe. The Court of Appeals relied on Morris v. Hitchcock and Maxey v. Wright in upholding the tax. The opinion for the court by Judge Walter H. Sanborn emphasized that the tax was in the nature of a condition precedent to transacting business within the reservation and that the plaintiffs had ample notice of the tax: "The permit tax of the Creek Nation, which is the subject of this controversy, is the annual price fixed by the act of its national council, which was approved by the President of the United States in the year 1900, for the privilege which it offers to those who are not citizens of its nation of trading within its borders. The payment of this tax is a mere condition of the exercise of this privilege. No noncitizen is required to exercise the privilege or to pay the tax. He may refrain from the one and he remains free from liability for the other. Thus, without entering upon an extended discussion or consideration of the question whether this charge is technically a license or a tax, the fact appears that it partakes far more of the nature of a license than of an ordinary tax, because it has the optional feature of the former and lacks the compulsory attribute of the latter. 78 "Repeated decisions of the courts, numerous opinions of the Attorneys General, and the practice of years place beyond debate the propositions that prior to March 1, 1901, the Creek Nation had lawful authority to require the payment of this tax as a condition precedent to the exercise of the privilege of trading within its borders, and that the executive department of the government of the United States had plenary power to enforce its payment through the Secretary of the Interior and his subordinates, the Indian inspector, Indian agent, and Indian police." 135 F., at 949-950. 79 The court noted that the traders, who had purchased town lots of the Creek Nation pursuant to a 1901 agreement between the Creeks and the United States, could not rely on that agreement as an implied divestiture of a pre-existing power to tax.33 The court held that even though noncitizens of the Tribe had acquired lawful ownership of lots pursuant to the 1901 agreement and could not be evicted from those lots, they had no right to conduct business within the reservation without paying the permit taxes.34 80 Prior to the enactment of the Indian Reorganization Act in 1934, these three cases were the only judicial decisions considering the power of an Indian tribe to impose a tax on nonmembers.35 These cases demonstrate that the power of an Indian tribe to impose a tax solely on nonmembers doing business on the reservation derives from the tribe's power to exclude those persons entirely from tribal lands or, in the alternative, to impose lesser restrictions and conditions on a right of entry granted to conduct business on the reservation.36 This interpretation is supported by the fact that the remedy for the nonpayment of the tax in all three cases was exclusion from the reservation.37 81 As I have noted, a limitation on the power of Indian tribes to tax nonmembers is not simply an archaic concept derived from three old cases that has no basis in logic or equity. Tribal powers over nonmembers are appropriately limited because nonmembers are foreclosed from participation in tribal government. If the power to tax is limited to situations in which the tribe has the power to exclude, then the nonmember is subjected to the tribe's jurisdiction only if he accepts the conditions of entry imposed by the tribe.38 The limited source of the power to tax nonmembers—the power to exclude intruders—is thus consistent with this Court's recognition of the limited character of the power of Indian tribes over nonmembers in general.39 The proper source of the taxing authority asserted by the Jicarilla Apache Tribe in these cases, therefore, is not the Tribe's inherent power of self-government, but rather its power over the territory that has been set apart for its use and occupation.40 82 This conclusion is consistent with our recent decision in Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10. In that case we held that a tribal tax on cigarettes sold on the reservations of the Colville, Makah, and Lummi Tribes to nonmembers of the Tribes was a permissible exercise of the Tribes' retained sovereign power to tax.41 We recognized that the power to tax non-Indians entering the reservation had not been divested by virtue of the Tribes' dependent status and that no overriding federal interest would be frustrated by the tribal taxation. The Court quoted with approval, as an indication of the Executive Branch's understanding of the taxing power, Solicitor Margold's 1934 opinion. The Court noted further that "[f]ederal courts also have acknowledged tribal power to tax non-Indians entering the reservation to engage in economic activity" and cited Buster v. Wright and Morris v. Hitchcock. 447 U.S., at 153, 100 S.Ct., at 2081.42 The tax in Colville, which was applied to nonmembers who entered the reservation and sought to purchase cigarettes, is clearly valid under the rationale that the tribes' power to tax derives from the right to exclude nonmembers from the reservation and the lesser right to attach conditions on the entry of such nonmembers seeking to do business there.43 Colville is consistent with the principles set forth above. The power of Indian tribes to tax nonmembers stems from the tribes' power to exclude those nonmembers; any exercise of this power must be consistent with its source.44 IV 83 The power to exclude petitioners would have supported the imposition of a discriminatory tribal tax on petitioners when they sought to enter the Jicarilla Apache Reservation to explore for minerals. Moreover, even if no tax had been imposed at the time of initial entry, a discriminatory severance tax could have been imposed as a condition attached to the grant of the privilege of extracting minerals from the earth.45 But the Tribe did not impose any tax prior to petitioners' entry or as a condition attached to the privileges granted by the leases in 1953. As a result, the tax imposed in 1976 is not valid unless the Tribe retained its power either to exclude petitioners from the reservation or to prohibit them from continuing to extract oil and gas from reservation lands. 84 The leases executed by the Tribe and petitioners are clearly valid and binding on both parties. The Tribe does not contend that the leases were not the product of arm's-length bargaining. Moreover, the leases were executed on a form prepared by the Department of the Interior, the Department gave specific approval to the terms of the leases, and they were executed pursuant to explicit congressional authority.46 Under the leases petitioners clearly have the right to remain on the reservation to do business for the duration of the contracts.47 85 There is no basis for a claim that exercise of the mining rights granted by the leases was subject to an additional, unstated condition concerning the payment of severance taxes.48 At the time the leases contained in the record were executed, the Jicarilla Apache Constitution contained no taxing authorization whatever; the severance tax ordinance was not enacted until many years after all lessees had been granted an unlimited right to extract oil and gas from the reservation. In addition, the written leases unambiguously stated: 86 "[N]o regulation hereafter approved shall effect a change in rate or royalty or annual rental herein specified without the written consent of the parties to this lease." App. 27. 87 Nor can it be said that notice of an inherent right to tax could have been gleaned from relevant statutory enactments. When Congress enacted legislation in 1927 granting the Indians the royalty income from oil and gas leases on reservations created by Executive Order, it neither authorized nor prohibited the imposition of any taxes by the tribes. Although the absence of such reference does not indicate that Congress pre-empted the right of the tribes to impose such a tax,49 the lack of any mention of tribal severance taxes defeats the argument that all parties were aware as a matter of law that a severance tax could be imposed at any time as a condition to the continued performance of a mineral lease. 88 Thus, nothing in the leases themselves or in any Act of Congress conveyed an indication that petitioners could accept the rights conferred by the leases only by accepting a condition that they pay any subsequently enacted severance tax. Nor could such a condition be presumed from prior taxing activity of the Tribe. In my opinion it is clear that the parties negotiated the leases in question with absolutely no expectation that a severance tax could later be imposed; in the contemplation of the parties, the conditions governing petitioners' right to extract oil and gas were not subject to change during the terms of the agreements. There simply is no support for the proposition that the Tribe retained the power in the leases to impose an additional condition on petitioners' right to enter the reservation and extract oil and gas from reservation lands. Since that authority was not retained, the Tribe does not now have the power to alter unilaterally the terms of the agreement and impose an additional burden on petitioners' right to do business on the reservation.50 89 In these cases, the Tribe seeks to impose a tax on the very activity that the leases granted petitioners the right to undertake. As Solicitor Margold wrote long ago: 90 "Over tribal lands, the tribe has the rights of a landowner as well as the rights of a local government, dominion as well as sovereignty. But on all the lands of the reservation, whether owned by the tribe, by members thereof, or by outsiders, the tribe has the sovereign power of determining the conditions upon which persons shall be permitted to enter its domain, to reside therein, and to do business, provided only such determination is consistent with applicable Federal laws and does not infringe any vested rights of persons now occupying reservation land under lawful authority." 55 I. D., at 50 (emphasis added). 91 Petitioners were granted authority by the Tribe to extract oil and gas from reservation lands. The Tribe now seeks to change retroactively the conditions of that authority. These petitioners happen to be prosperous oil companies. Moreover, it may be sound policy to find additional sources of revenue to better the economic conditions of many Indian tribes. If this retroactive imposition of a tax on oil companies is permissible, however, an Indian tribe may with equal legitimacy contract with outsiders for the construction of a school or a hospital, or for the rendition of medical or technical services, and then—after the contract is partially performed—change the terms of the bargain by imposing a gross receipts tax on the outsider. If the Court is willing to ignore the risk of such unfair treatment of a local contractor or a local doctor because the Secretary of the Interior has the power to veto a tribal tax, it must equate the unbridled discretion of a political appointee with the protection afforded by rules of law. That equation is unacceptable to me. Neither wealth, political opportunity, nor past transgressions can justify denying any person the protection of the law. 1 See 1 C. Kappler, Indian Affairs, Laws and Treaties 875 (1904) (Order of President Cleveland). Two earlier Orders setting aside land for the Tribe had been canceled. See id., at 874-875 (Orders of Presidents Hayes and Grant). The boundaries of the reservation were redefined or clarified by Executive Orders issued by President Theodore Roosevelt on November 11, 1907, and January 28, 1908, and by President Taft on February 17, 1912. See 3 C. Kappler, Indian Affairs, Laws and Treaties 681, 682, 684, 685 (1913). The fact that the Jicarilla Apache Reservation was established by Executive Order rather than by treaty or statute does not affect our analysis; the Tribe's sovereign power is not affected by the manner in which its reservation was created. E.g., Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980). 2 The proviso reads as follows: "this order shall not be so construed as to deprive any bona fide settler of any valid rights he may have acquired under the law of the United States providing for the disposition of the public domain." 1 C. Kappler, supra, at 875. 3 The Tribe is also chartered under the Indian Reorganization Act of 1934, ch. 576, 48 Stat. 988, 25 U.S.C. § 477, which permits the Secretary to issue to an Indian tribe a charter of incorporation that may give the tribe the power to purchase, manage, operate, and dispose of its property. 4 Two judges dissented. Both argued that tribal sovereignty does not encompass the power to tax non-Indian lessees, 617 F.2d, at 551-556 (Seth, C. J., dissenting); id., at 556-565 (Barrett, J., dissenting) (also arguing the tax violates the Commerce Clause). 5 Through various Acts governing Indian tribes, Congress has expressed the purpose of "fostering tribal self-government." Colville, 447 U.S., at 155, 100 S.Ct., at 2081. We agree with Judge McKay's observation that "[i]t simply does not make sense to expect the tribes to carry out municipal functions approved and mandated by Congress without being able to exercise at least minimal taxing powers, whether they take the form of real estate taxes, leasehold taxes or severance taxes." 617 F.2d, at 550 (McKay, J., concurring). 6 Moreover, in its revision of the classic treatise on Indian Law, the Department of the Interior advances the view that the Indian tribes' power to tax is not limited by the power to exclude. See U.S. Solicitor for Dept. of Interior, Federal Indian Law 438 (1958) ("The power to tax does not depend upon the power to remove and has been upheld where there was no power in the tribe to remove the taxpayer from the tribal jurisdiction") (footnote omitted). See also F. Cohen, Handbook of Federal Indian Law 142 (1942) ("One of the powers essential to the maintenance of any government is the power to levy taxes. That this power is an inherent attribute of tribal sovereignty which continues unless withdrawn or limited by treaty or by act of Congress is a proposition which has never been successfully disputed") (footnote omitted). 7 The governing treaty in Maxey v. Wright restricted the tribal right of self-government and jurisdiction to members of the Creek or Seminole Tribes. The court relied, at least in part, on opinions of the Attorney General interpreting this treaty. For example, one such opinion stated that, whatever the meaning of the clause limiting to tribal members the Tribes' unrestricted rights of self-government and jurisdiction, it did " 'not limit the right of these tribes to pass upon the question, who . . . shall share their occupancy, and upon what terms. That is a question which all private persons are allowed to decide for themselves; and even wild animals, not men, have a certain respect paid to the instinct which in this respect they share with man. The serious words "jurisdiction" and "self-government" are scarcely appropriate to the right of a hotel keeper to prescribe rules and charges for persons who become his fellow occupants.' " 3 Ind.T., at 250, 54 S.W., at 809 (quoting 18 Op.Atty.Gen. 4, 36, 37 (1884)). The court, as well as the opinion of the Attorney General, found that the Tribes' "natural instinct" to set terms on occupancy was unaltered by the treaty. Neither the court nor the Attorney General addressed the scope of Indian sovereignty when unlimited by treaty; instead, they identified a tribe's right, as a social group, to exclude intruders and place conditions on their occupancy. The court's dependence on this reasoning hardly bears on the more general question posed here: what is the source of the Indian tribes' sovereign power to tax absent a restriction by treaty or other federal law? 8 Both the classic treatise on Indian Law and its subsequent revision by the Department of the Interior, see n. 6, supra, agree with this reading of Buster v. Wright. Federal Indian Law, supra, n. 6, at 438; Cohen, supra, n. 6, at 142 (both citing Buster v. Wright for the proposition that the power to tax is an inherent sovereign power not dependent on the power to exclude). 9 See also Barta v. Oglala Sioux Tribe of Pine Ridge Reservation, 259 F.2d 553 (CA8 1958) (lessees of tribal lands subject to Indian tax on use of land). 10 Here, the leases extend for as long as minerals are produced in paying quantities, in other words, until the resources are depleted. Thus, under the dissent's approach, the Tribe would never have the power to tax petitioners regardless of the financial burden to the Tribe of providing and maintaining governmental services for the benefit of petitioners. 11 But see Buster v. Wright, 135 F., at 958: "The ultimate conclusion of the whole matter is that purchasers of lots in town sites in towns or cities within the original limits of the Creek Nation, who are in lawful possession of their lots, are still subject to the laws of that nation prescribing permit taxes for the exercise by noncitizens of the privilege of conducting business in those towns. . . ." 12 In contrast, the 1958 treatise on Indian law written by the United States Solicitor for the Department of the Interior recognized and distinguished the scope of these two roles when it embraced as the "present state of the law" the following summary: " 'Over tribal lands, the tribe has the rights of a landowner as well as the rights of a local government, dominion as well as sovereignty. But over all the lands of the reservation, whether owned by the tribe, by members thereof, or by outsiders, the tribe has the sovereign power of determining the conditions upon which persons shall be permitted to enter its domain, to reside therein, and to do business, provided only such determination is consistent with applicable Federal laws and does not infringe any vested rights of persons now occupying reservation lands under lawful authority.' " Federal Indian Law, supra, n.6, at 439 (quoting Solicitor's Opinion of Oct. 25, 1934) (emphasis added). See Cohen, supra, n.6, at 143. 13 See also P. Maxfield, M. Dieterich, & F. Trelease, Natural Resources Law on American Indian Lands 4-6 (1977). Federal limitations on tribal sovereignty can also occur when the exercise of tribal sovereignty would be inconsistent with overriding national interests. See Colville, 447 U.S., at 153, 100 S.Ct., at 2081. This concern is not presented here. See ibid. 14 Petitioners and the dissent also argue that we should infer a waiver of the taxing power from silence in the Tribe's original Constitution. Although it is true that the Constitution in force when petitioners signed their leases did not include a provision specifically authorizing a severance tax, neither the Tribe's Constitution nor the Federal Constitution is the font of any sovereign power of the Indian tribes. E.g., Iron Crow v. Oglala Sioux Tribe of Pine Ridge Reservation, 231 F.2d 89, 94 (CA8 1956); Buster v. Wright, 135 F., at 950. Because the Tribe retains all inherent attributes of sovereignty that have not been divested by the Federal Government, the proper inference from silence on this point is that the sovereign power to tax remains intact. The Tribe's Constitution was amended to authorize the tax before the tax was imposed, and this is the critical event necessary to effectuate the tax. See Barta v. Oglala Sioux Tribe of Pine Ridge Reservation, 259 F.2d, at 554, 556; Iron Crow v. Oglala Sioux Tribe of Pine Ridge Reservation, supra, at 99. 15 The Secretary has implemented the substance of this proviso by the following regulation: "The regulations in this part may be superseded by the provisions of any tribal constitution, bylaw or charter issued pursuant to the Indian Reorganization Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 461-479), . . . or by ordinance, resolution or other action authorized under such constitution, bylaw or charter. The regulations in this part, in so far as they are not so superseded, shall apply to leases made by organized tribes if the validity of the lease depends upon the approval of the Secretary of the Interior." 25 CFR § 171.29 (1980). 16 In arguing that the 1938 Act was intended to pre-empt the severance tax, petitioners attach great significance to the Secretary's approval of the leases. Curiously, they attach virtually no significance to the fact that the Secretary also approved the tax ordinance that they challenge here. 17 The Tribe argues that the 1927 Act granting the States the power to tax mineral production on Indian land is inapplicable because the leases at issue here were signed pursuant to the 1938 Act. The 1938 Act, which makes uniform the laws applicable to leasing mineral rights on tribal lands, does not contain a grant of power to the States comparable to that found in the 1927 Act. As a result, the Tribe asserts that the State of New Mexico has no power to tax the production under petitioners' leases with the Tribe. Because the State of New Mexico is not a party to this suit, the Court of Appeals did not reach this issue. See 617 F.2d, at 547-548, n. 5. For this reason, and because we conclude that the 1927 Act did not affect the Tribe's authority to tax, we likewise do not reach this issue. 18 The statute provides that Indian severance taxes may be recovered through federal energy pricing. However, the legislative history indicates that Congress took no position on the source of the Indian tribes' power to impose the tax in the first place: "While severance taxes which may be imposed by an Indian tribe are to be treated in the same manner as State imposed severance taxes, the conferees do not intend to prejudge the outcome of the cases on appeal before the Tenth Circuit Court of Appeals respecting the right of Indian tribes to impose taxes on persons or organizations other than Indians who are engaged in business activities on Indian reservations. The outcome of the cases on appeal will determine the legality of imposing such taxes." S.Conf.Rep.No.95-1126, p. 91 (1978); H.R.Conf.Rep.No.95-1752, p. 91 (1978), U.S.Code Cong. & Admin.News 1978, p. 8800. 19 The Commerce Clause empowers Congress "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S.Const., Art. I, § 8, cl. 3 (emphasis added). 20 In Prudential Insurance Co. v. Benjamin, this Court refused to invalidate a South Carolina tax on out-of-state insurance companies despite appellant's contention that the tax impermissibly burdened interstate commerce. The Court refused to entertain appellant's argument because Congress, in passing the McCarran-Ferguson Act, had provided that "silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of [the business of insurance] by the several States." 59 Stat. 33, 15 U.S.C. § 1011. 21 Although Congress has not expressly announced that Indian taxes do not threaten its latent power to regulate interstate commerce, it is unclear how Congress could articulate that intention any more convincingly than it has done here. In contrast to when Congress acts with respect to the States, when Congress acts with respect to the Indian tribes, it generally does so pursuant to its authority under the Indian Commerce Clause, or by virtue of its superior position over the tribes, not pursuant to its authority under the Interstate Commerce Clause. This is but one of the difficulties inherent in reviewing under the Interstate Commerce Clause both tribal action and congressional action regulating the tribes. Therefore, in determining whether Congress has "acted" to preclude judicial review, we do not find it significant that the congressional action here was not taken pursuant to the Interstate Commerce Clause. 22 Petitioners initially contend that the ordinance taxes the transportation of the minerals from the reservation, not their severance from the mines. As a result, they argue that the ordinance impermissibly burdens interstate commerce by taxing the movement in commerce itself, which is not a local event. The tax, by its terms, applies to resources that are "produced on the Jicarilla Apache Tribe Reservation and sold or transported off the reservation." App. 39. The Tribe explains that this language was used because no sale occurs prior to the transportation off the reservation. The Tribe's tax is due at the time of severance. Id., at 38. Therefore, we agree with the Court of Appeals that the taxable event defined by the ordinance is the removal of minerals from the soil, not their transportation from the reservation. See 617 F.2d, at 546. 23 The Court of Appeals noted that, because the lessees chose not to build a factual foundation to challenge the tax on this ground, there was no basis on which to find that the tax was not fairly related to the services provided by the Tribe. See id., at 545, n. 4. Indeed, when the Tribe attempted to introduce at trial evidence of the services it had provided to establish this relationship, the District Court rejected this evidence upon petitioners' objection that such evidence was irrelevant to their challenge. Brief for Respondent Jicarilla Apache Tribe 7-8; 6 Record 278-290, 294, 300-308. 24 The ordinance does not distinguish between minerals remaining within New Mexico and those transported beyond the state boundary. As a result, petitioners' argument that the tax discriminates against interstate commerce by favoring local sales focuses on the boundary between the reservation and the State of New Mexico and not on any interstate boundaries. We will assume for purposes of this argument only that this alleged reservation-state discrimination could give rise to a Commerce Clause violation. 25 Paragraph 4 of the ordinance specifies that "[r]oyalty gas, oil or condensate taken by the Tribe in kind, and used by the Tribe shall be exempt from taxation." App. 39. 26 Petitioners contend that because New Mexico may tax the same mining activity at full value, the Indian tax imposes a multiple tax burden on interstate commerce in violation of the Commerce Clause. The multiple taxation issue arises where two or more taxing jurisdictions point to some contact with an enterprise to support a tax on the entire value of its multistate activities, which is more than the contact would justify. E.g., Standard Oil Co. v. Peck, 342 U.S. 382, 384-385, 72 S.Ct. 309, 310-311, 96 L.Ed. 427 (1952). This Court has required an apportionment of the tax based on the portion of the activity properly viewed as occurring within each relevant State. See, e.g., Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U.S. 207, 219, 100 S.Ct. 2109, 2118, 65 L.Ed.2d 66 (1980); Washington Revenue Dept. v. Association of Washington Stevedoring Cos., 435 U.S. 734, 746, and n. 16, 98 S.Ct. 1388, 1397, and n. 16, 55 L.Ed.2d 682 (1978). This rule has no bearing here, however, for there can be no claim that the Tribe seeks to tax any more of petitioners' mining activity than the portion occurring within Tribal jurisdiction. Indeed, petitioners do not even argue that the Tribe is seeking to seize more tax revenues than would be fairly related to the services provided by the Tribe. See supra, at 157, and n. 23. In the absence of such an assertion, and when the activity taxed by the Tribe occurs entirely on tribal lands, the multiple taxation issue would arise only if a State attempted to levy a tax on the same activity, which is more than the State's contact with the activity would justify. In such a circumstance, any challenge asserting that tribal and state taxes create a multiple burden on interstate commerce should be directed at the state tax, which, in the absence of congressional ratification, might be invalidated under the Commerce Clause. These cases, of course, do not involve a challenge to state taxation, and we intimate no opinion on the possibility of such a challenge. 1 See Plaintiff's Exhibit E, p. 4. 2 "[H]ereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty: Provided, further, That nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe." 16 Stat. 566, current version at 25 U.S.C. § 71. 3 The entire Executive Order reads as follows: "EXECUTIVE MANSION, FEBRUARY 11, 1887. "It is hereby ordered that all that portion of the public domain in the Territory of New Mexico which, when surveyed, will be embraced in the following townships, viz: "27, 28, 29, and 30 north, ranges 1 east, and 1, 2, and 3 west; 31 and 32 north, ranges 2 west and 3 west, and the south half of township 31 north, range 1 west, be, and the same is hereby, set apart as a reservation for the use and occupation of the Jicarilla Apache Indians: Provided, That this order shall not be so construed as to deprive any bona fide settler of any valid rights he may have acquired under the law of the United States providing for the disposition of the public domain. "Grover Cleveland." 1 C. Kappler, Indian Affairs, Laws and Treaties 875 (1904). 4 The Secretary contended that the land on Executive Order reservations was subject to leasing, as "lands of the United States," under the Mineral Lands Leasing Act of February 25, 1920, 41 Stat. 437, 30 U.S.C. § 181 et seq. In 1924, Attorney General Stone rendered an opinion stating that the Mineral Lands Leasing Act did not apply to Executive Order reservations. 34 Op.Atty.Gen. 181. In 1925, Stone instituted litigation in the District Court of Utah to cancel certain leases that had been authorized by the Secretary of the Interior pursuant to the Mineral Lands Leasing Act. See H.R.Rep.No.1791, 69th Cong., 2d Sess., 5 (1927). The case was dismissed by stipulation after the enactment of the 1927 Act noted in the text. See United States v. McMahon, 273 U.S. 782, 47 S.Ct. 471, 71 L.Ed. 890. A later decision by this Court suggests that the Secretary's position was correct. In Sioux Tribe of Indians v. United States, 316 U.S. 317, 62 S.Ct. 1095, 86 L.Ed. 1501, the Court held that an Indian tribe was not entitled to compensation from the United States when an Executive Order reservation was abolished. The Court said: "Perhaps the most striking proof of the belief shared by Congress and the Executive that the Indians were not entitled to compensation upon the abolition of an executive order reservation is the very absence of compensatory payments in such situations. It was a common practice, during the period in which reservations were created by executive order, for the President simply to terminate the existence of a reservation by cancelling or revoking the order establishing it. That is to say, the procedure followed in the case before us was typical. No compensation was made, and neither the Government nor the Indians suggested that it was due. * * * * * "We conclude therefore that there was no express constitutional or statutory authorization for the conveyance of a compensable interest to petitioner by the four executive orders of 1875 and 1876, and that no implied Congressional delegation of the power to do so can be spelled out from the evidence of Congressional and executive understanding. The orders were effective to withdraw from sale the lands affected and to grant the use of the lands to the petitioner. But the interest which the Indians received was subject to termination at the will of either the executive or Congress and without obligation to the United States. The executive orders of 1879 and 1884 were simply an exercise of this power of termination, and the payment of compensation was not required." Id., at 330-331, 62 S.Ct., at 1101. See also Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279-282, 75 S.Ct. 313, 317-319, 99 L.Ed. 314. 5 Act of Mar. 3, 1927, 44 Stat. (part 2) 1347, current version at 25 U.S.C. § 398a. Section 1 of the Act provided: "[U]nallotted lands within the limits of any reservation or withdrawal created by Executive order for Indian purposes or for the use or occupancy of any Indians or tribe may be leased for oil and gas mining purposes in accordance with the provisions contained in the Act of May 29, 1924 [25 U.S.C. § 398]." See also 25 U.S.C. § 398. Unalloted land is land that had not been allotted in severalty to individual Indians pursuant to the General Allotment Act of 1887, 24 Stat. 388. 6 Section 2 of the Act provided: "[T]he proceeds from rentals, royalties, or bonuses of oil and gas leases upon lands within Executive order Indian reservations or withdrawals shall be deposited in the Treasury of the United States to the credit of the tribe of Indians for whose benefit the reservation or withdrawal was created or who are using and occupying the land, and shall draw interest at the rate of 4 per centum per annum and be available for appropriation by Congress for expenses in connection with the supervision of the development and operation of the oil and gas industry and for the use and benefit of such Indians: Provided, That said Indians, or their tribal council, shall be consulted in regard to the expenditure of such money, but no per capita payment shall be made except by Act of Congress." 44 Stat. (part 2) 1347, current version at 25 U.S.C. § 398b. 7 Section 3 of the Act provided: "[T]axes may be levied and collected by the State or local authority upon improvements, output of mines or oil and gas wells or other rights, property, or assets of any lessee upon lands within Executive order Indian reservations in the same manner as such taxes are otherwise levied and collected, and such taxes may be levied against the share obtained for the Indians as bonuses, rentals, and royalties, and the Secretary of the Interior is authorized and directed to cause such taxes to be paid out of the tribal funds in the Treasury: Provided, That such taxes shall not become a lien or charge of any kind against the land or other property of such Indians." 44 Stat. (part 2) 1347, current version at 25 U.S.C. § 398c. 8 In 1938, Congress passed the Act of May 11, 1938, 52 Stat. 347, 25 U.S.C. §§ 396a-396g, which was designed in part to achieve uniformity for all mineral leases of Indian lands. Like the 1927 Act, the statute provided that the tribes were entitled to the royalties from such leases. The statute made no mention of taxes. See n. 45, infra. 9 The statute provided, in part: "Any Indian tribe, or tribes, residing on the same reservation, shall have the right to organize for its common welfare, and may adopt an appropriate constitution and bylaws, which shall become effective when ratified by a majority vote of the adult members of the tribe, or of the adult Indians residing on such reservation, as the case may be, at a special election authorized and called by the Secretary of the Interior under such rules and regulations as he may prescribe. . . . "In addition to all powers vested in any Indian tribe or tribal council by existing law, the constitution adopted by said tribe shall also vest in such tribe or its tribal council the following rights and powers: To employ legal counsel, the choice of counsel and fixing of fees to be subject to the approval of the Secretary of the Interior; to prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe; and to negotiate with the Federal, State, and local Governments." 25 U.S.C. § 476. 10 The statute provided: "The Secretary of the Interior may, upon petition by at least one-third of the adult Indians, issue a charter of incorporation to such tribe: Provided, That such charter shall not become operative until ratified at a special election by a majority vote of the adult Indians living on the reservation. Such charter may convey to the incorporated tribe the power to purchase, take by gift, or bequest, or otherwise, own, hold, manage, operate, and dispose of property of every description, real and personal, including the power to purchase restricted Indian lands and to issue in exchange therefor interests in corporate property, and such further powers as may be incidental to the conduct of corporate business, not inconsistent with law; but no authority shall be granted to sell, mortgage, or lease for a period exceeding ten years any of the land included in the limits of the reservation. Any charter so issued shall not be revoked or surrendered except by Act of Congress." 25 U.S.C. § 477. 11 See F. Cohen, Handbook of Federal Indian Law 267 (1942) (hereinafter Cohen). 12 The 1937 Constitution made no reference to any power to assess taxes against nonmembers. See 1937 Constitution and By-Laws of the Jicarilla Apache Tribe, Defendants' Exhibit G. 13 This lease is attached to petitioners' complaint in No. 80-11. The lease attached to the complaint in No. 80-15 was also executed in 1953. See App. 62. The record does not disclose the date on which most of the leases with petitioners were executed, but the record does indicate that leases were executed as late as 1967. See Plaintiffs' Exhibit 1. Leases of Jicarilla tribal property cover in the aggregate over 500,000 acres of land, comprising almost 69% of the acreage within the Jicarilla Reservation. Brief for Respondent, Jicarilla Apache Tribe 2. 14 App. to Brief for Petitioners in No. 80-15, pp. 12a-13a. An earlier Constitution adopted in 1960 contained a similar provision permitting "taxes and fees on persons doing business on the reservation." See 1960 Constitution of the Jicarilla Apache Tribe, Art. VI, § 5, Defendant's Exhibit A. 15 See District Court's Findings of Fact and Conclusions of Law, Finding No. 32, App. 130. The Tribe's answers to interrogatories indicate that in 1976 the royalties on the leases received by the Tribe amounted to $3,995,469.69. See Plaintiff's Exhibit E, p. 7; Tr. 269. 16 Congress may delegate "sovereign" powers to the tribes. See United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706. As indicated, however, neither the 1927 statute permitting Indians to receive royalties from the lease of tribal lands nor the Indian Reorganization Act of 1934 conveys authority to the Indian tribes to tax. See supra, at 163-165. 17 The only reference to Indian tribes in the Constitution is in Art. I, § 8, cl. 3, which provides that "[t]he Congress shall have Power . . . [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." More significant than this reference to Indian tribes is the absence of any mention of the tribes in the Tenth Amendment, which 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." 18 The Indian tribes often have been described as "domestic dependent nations." The term was first used in Cherokee Nation v. Georgia, 5 Pet. 1, 8 L.Ed. 25, where Chief Justice Marshall, writing for the Court, explained: "Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet, it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian." Id., at 17, 8 L.Ed. 25. The United States retains plenary authority to divest the tribes of any attributes of sovereignty. See United States v. Wheeler, 435 U.S. 313, 319, 98 S.Ct. 1079, 1083, 55 L.Ed.2d 303; Winton v. Amos, 255 U.S. 373, 391-392, 41 S.Ct. 342, 349, 65 L.Ed. 684; Lone Wolf v. Hitchcock, 187 U.S. 553, 565, 23 S.Ct. 216, 221, 47 L.Ed. 299; 1 American Indian Policy Review Commission, Final Report 106-107 (1977) (hereinafter AIPRC Final Report). Thus, for example, Congress can waive the tribes' sovereign immunity. See United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512, 60 S.Ct. 653, 656, 84 L.Ed. 894. 19 The Indian Civil Rights Act of 1968, 82 Stat. 77, 25 U.S.C. §§ 1301-1303, prohibits Indian tribes from denying "to any person within its jurisdiction the equal protection of its laws." § 1302(8). In Santa Clara Pueblo, however, the Court held that sovereign immunity protected a tribe from suit under the Act, that the Act did not create a private cause of action cognizable in federal court, and that a tribal court was the appropriate forum for vindication of rights created by the Act. 20 In Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196, the Court held that the Fifth Amendment right to indictment by grand jury does not apply to prosecutions in tribal courts. See also United States v. Wheeler, supra, at 328-329, 98 S.Ct., at 1088-1089. 21 Certain treaties that specifically granted the right of self-government to the tribes also specifically excluded jurisdiction over nonmembers. See, e.g., Treaty with the Cherokees, Art. 5, 7 Stat. 481 (1835); Treaty with the Choctaws and Chickasaws, Art. 7, 11 Stat. 612 (1855); Treaty with the Creeks and Seminoles, Art. 15, 11 Stat. 703 (1856). 22 In support of that holding, the Court stated: "Upon incorporation into the territory of the United States, the Indian tribes thereby come under the territorial sovereignty of the United States and their exercise of separate power is constrained so as not to conflict with the interests of this overriding sovereignty. '[T]heir rights to complete sovereignty, as independent nations, [are] necessarily diminished.' Johnson v. M'Intosh, 8 Wheat. 543, 574 [5 L.Ed. 681] (1823)." 435 U.S., at 209, 98 S.Ct., at 1021. See also New York ex rel. Ray v. Martin, 326 U.S. 496, 499, 66 S.Ct. 307, 308, 90 L.Ed. 261 (state court has jurisdiction to try a non-Indian for a crime committed against a non-Indian on a reservation). 23 Preceding this statement the Court noted that "the Court [in Oliphant] quoted Justice Johnson's words in his concurrence in Fletcher v. Peck, 6 Cranch 87, 147, 3 L.Ed. 162—the first Indian case to reach this Court—that the Indian tribes have lost any 'right of governing every person within their limits except themselves.' 435 U.S., at 209 [98 S.Ct., at 1021]." Montana v. United States, 450 U.S., at 565, 101 S.Ct., at 1258. See also Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (tribes cannot freely alienate to non-Indians the land they occupy); Cherokee Nation v. Georgia, 5 Pet. 1, 17-18, 8 L.Ed. 25 (tribes cannot enter into direct commercial or foreign relations with other nations). In United States v. Wheeler, supra, the Court held that the tribes' power to prosecute its members for tribal offenses was not "implicitly lost by virtue of their dependent status," but stated: "The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe. . . . "These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such powers as would necessarily be lost by virtue of a tribe's dependent status. '[T]he settled doctrine of the law of nations is, that a weaker power does not surrender its independence—its right to self government, by associating with a stronger, and taking its protection.' Worcester v. Georgia [6 Pet.], at 560-561." 435 U.S., at 326, 98 S.Ct., at 1088. 24 The Indian Reorganization Act of 1934 confirmed but did not enlarge the inherent sovereign powers of the Indian tribes. Congress intended the Act to "stabilize the tribal organization of Indian tribes by vesting such tribal organizations with real, though limited, authority. . . ." S.Rep. No. 1080, 73d Cong., 2d Sess., 1 (1934). As one commentator interpreted § 16 of the Act: "[I]t would appear that powers originally held by tribes that were recognized and allowed to be retained by treaties or prior statutes, as well as any additional powers conferred in the same manner, would be retained by tribes that accepted the terms of the 1934 Act. . . . The provision is consistent with the act's purpose of enhancing tribal government in that it recognized and reconfirmed those powers a tribe may already have had as a government." Mettler, A Unified Theory of Indian Tribal Sovereignty, 30 Hastings L.Rev. 89, 97 (1978). Moreover, although the power given by the Reorganization Act to the Secretary of the Interior to approve or disapprove of the exercise of tribal powers places a limit on tribal sovereignty, that power does not enable the Secretary to add to the inherent powers that a tribe possessed before the Act was passed. On the other hand, the fact that an Indian tribe may never have had the occasion to exercise a particular power over nonmembers in its early history is not a sufficient reason to deny the existence of that power. Accordingly, the fact that there is no evidence that the Jicarilla Apache Tribe ever imposed a tax of any kind on a nonmember does not require the conclusion that it has no such taxing power. To the extent that the power to tax was an attribute of sovereignty possessed by Indian tribes when the Reorganization Act was passed, Congress intended the statute to preserve those powers for all Indian tribes that adopted a formal organization under the Act. 25 55 I. D. 14 (1934). Solicitor Margold described the scope of this opinion as follows: "My opinion has been requested on the question of what powers may be secured to an Indian tribe and incorporated in its constitution and by-laws by virtue of the following phrase, contained in section 16 of the Wheeler-Howard Act (48 Stat. 984, 987) [the Reorganization Act of 1934]: 'In addition to all powers vested in any Indian tribe or tribal council by existing law, the constitution adopted by said tribe shall also vest. . . . [Italics added.]' "The question of what powers are vested in an Indian tribe or tribal council by existing law cannot be answered in detail for each Indian tribe without reference to hundreds of special treaties and special acts of Congress. It is possible, however, on the basis of the reported cases, the written opinions of the various executive departments, and those statutes of Congress which are of general import, to define the powers which have heretofore been recognized as lawfully within the jurisdiction of an Indian tribe. My answer to the propounded question, then, will be general, and subject to correction for particular tribes in the light of the treaties and statutes affecting such tribe wherever such treaties or statutes contain peculiar provisions restricting or enlarging the general authority of an Indian tribe." Id., at 17-18. 26 Felix Cohen, in his Handbook on Federal Indian Law published in 1942, also relies on these cases in his discussion of tribal taxation of nonmembers. Cohen 266-267. The Court in Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10, cited both Buster v. Wright and Morris v. Hitchcock in upholding an exercise of the tribal power to tax. 447 U.S., at 153, 100 S.Ct., at 2081. See infra., at 185. 27 "Attorneys practicing in the United States courts are not persons who come within the exceptions, for they are not 'in the employment of the government of the United States,' or 'persons peaceably traveling or temporarily sojourning in the country, or trading therein under license from the proper authority of the United States.' " 3 Ind.T., at 248-249, 54 S.W., at 809. 28 In reaching this conclusion the court relied heavily on two opinions of the Attorney General of the United States. In the first opinion, issued in 1881, Attorney General MacVeagh supported the validity of Indian permit laws that determined which persons would be permitted to reside on the Choctaw and Chickasaw Reservations. 17 Op.Atty.Gen. 134. In his discussion of the right of non-Indians to enter and remain on tribal lands, MacVeagh stated: "Replying to your fourth question: it seems from what has been already said that, besides those persons or classes mentioned by you, only those who have been permitted by the Choctaws or Chickasaws to reside within their limits, or to be employed by their citizens as teachers, mechanics, or skilled agriculturists, have a right to enter and remain on the lands of these tribes; and the right to remain is gone when the permit has expired." Id., at 136 (emphasis added). In a second opinion on the same subject, Attorney General Phillips stated in 1884 that, in the absence of a treaty or statute, the power of an Indian tribe "to regulate its own rights of occupancy, and to say who shall participate therein and upon what conditions, can not be doubted." 18 Op.Atty.Gen. 34, 36. Although the treaties applicable to the Choctaw and Chickasaw Tribes specifically excepted from the grant of self-government the power over nonmembers, the Attorney General did not construe this provision to limit the Tribes' power to exclude: "I submit that whatever this may mean it does not limit the right of these tribes to pass upon the question, who (of persons indifferent to the United States, i.e., neither employes, nor objectionable) shall share their occupancy and upon what terms. That is a question which all private persons are allowed to decide for themselves . . . ." Id., at 37. 29 In other parts of its opinion, the court restated the propositions that the Tribe was "clothed with the power to admit white men, or not, at its option, which, as we hold, gave it the right to impose conditions," 3 Ind.T., at 253, 54 S.W., at 811, and that a lawyer who refused to pay for the privilege of remaining would become an "intruder": "On the whole case we therefore hold that a lawyer who is a white man, and not a citizen of the Creek Nation, is, pursuant to their statute, required to pay for the privilege of remaining and practicing his profession in that nation the sum of $25; that, if he refuse the payment thereof, he becomes, by virtue of the treaty, an intruder, and that in such a case the government of the United States may remove him from the nation; and that this duty devolves upon the interior department. Whether the interior department or its Indian agents can be controlled by the courts by the writs of mandamus and injunction is not material in this case, because, as we hold, an attorney who refuses to pay the amount required by the statute by its very terms becomes an intruder, whom the United States promises by the terms of the treaty to remove, and therefore in such cases the officers and agents of the interior department would be acting clearly and properly within the scope of their powers." Id., at 256-257, 54 S.W., at 812. 30 The Court stated: "And it is not disputed that under the authority of these treaties, the Chickasaw Nation has exercised the power to attach conditions to the presence within its borders of persons who might otherwise not be entitled to remain within the tribal territory." 194 U.S., at 389, 24 S.Ct., at 714. 31 The 1876 legislation required licensed merchants and traders to obtain a permit and pay a fee of $25. 32 The Court relied on 23 Op.Atty.Gen. 214 (1900) and 23 Op.Atty.Gen. 528 (1901). In the first opinion, Attorney General John W. Griggs stated: "The treaties and laws of the United States make all persons, with a few specified exceptions, who are not citizens of an Indian nation or members of an Indian tribe, and are found within an Indian nation without permission, intruders there, and require their removal by the United States. This closes the whole matter, absolutely excludes all but the excepted classes, and fully authorizes these nations to absolutely exclude outsiders, or to permit their residence or business upon such terms as they may choose to impose, and it must be borne in mind that citizens of the United States, have, as such, no more right or business to be there than they have in any foreign nation, and can lawfully be there at all only by Indian permission; and that their right to be or remain or carry on business there depends solely upon whether they have such permission. "As to the power or duty of your Department in the premises there can hardly be a doubt. Under the treaties of the United States with these Indian nations this Government is under the most solemn obligation, and for which it has received ample consideration, to remove and keep removed from the territory of these tribes, all this class of intruders who are there without Indian permission. The performance of this obligation, as in other matters concerning the Indians and their affairs, has long been devolved upon the Department of the Interior." 23 Op.Atty.Gen., at 218. 33 After citing the opinion of Attorney General Griggs quoted at length in Morris v. Hitchcock, Judge Sanborn wrote: "Pursuant to this decision the civilized tribes were charging, and the Indian agent was collecting, taxes from noncitizens engaged in business in these nations. It was under this state of facts that the United States and the Creek Nation made the agreement of 1901. Did they intend by that agreement that the Creek Nation should thereby renounce its conceded power to exact these permit taxes? Both parties knew that this power existed, and the United States, by the act of its President approving the law of the Creek national council, and the Secretary of the Interior by enforcing it, had approved its exercise. The subject of these taxes was presented to the minds of the contracting parties and was considered during the negotiation of the agreement, for that contract contains express stipulations that cattle grazed on rented allotments shall not be liable to any tribal tax (chapter 676, 31 Stat. 871, § 37), and that 'no noncitizen renting lands from a citizen for agricultural purposes as provided by law, whether such lands have been selected as an allotment or not, shall be required to pay any permit tax' (chapter 676, 31 Stat. 871, § 39). But they made no provision that noncitizens who engaged in the mercantile business in the Creek Nation should be exempt from these taxes. As the law then in force required such noncitizens to pay such taxes, as both parties were then aware of that fact and considered the question, and as they made no stipulation to abolish these taxes, the conclusive presumption is that they intended to make no such contract, and that the power of the Creek Nation to exact these taxes, and the authority of the Secretary of the Interior and of his subordinates to collect them, were neither renounced, revoked, nor restricted, but that they remained in full force and effect after as before the agreement of 1901." 135 F., at 954. 34 Ibid. The court stated: "The legal effect . . . of the law prescribing the permit taxes is to prohibit noncitizens from conducting business within the Creek Nation without the payment of these taxes." Id., at 955. 35 Two decades after the Reorganization Act was passed the problem was revisited by the Eighth Circuit. In Iron Crow v. Oglala Sioux Tribe of Pine Ridge Reservation, 231 F.2d 89 (1956), the court held that the Tribe had the power to assess a tax on a nonmember lessee of land within the reservation for the privilege of grazing stock on reservation land. And in Barta v. Oglala Sioux Tribe of Pine Ridge Reservation, 259 F.2d 553 (1958), the court held that the United States could bring an action on behalf of the Tribe to collect a license tax of 3 cents per acre per annum for grazing land and 15 cents per acre per annum for farm land levied on nonmember lessees. The court in Barta held that the tax did not violate the constitutional rights of the nonmember lessees, stating in part: "The tribe by provisions of its treaty with the United States has power to provide for the admission of nonmembers of the tribe onto the reservation. Having such power, it has the authority to impose restrictions on the presence of nonmembers within the reservation." Id., at 556. Language in both Iron Crow and Barta suggests that the Court of Appeals, unlike the earlier courts, may not have rested the taxing power solely on the power to exclude. The Court of Appeals of course did not have the benefit of our decisions in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209, Wheeler, and Montana v. United States. 36 In the chapter of his treatise entitled "Taxation," Felix Cohen states: "Though the scope of the power [to tax] as applied to nonmembers is not clear, it extends at least to property of nonmembers used in connection with Indian property as well as to privileges enjoyed by nonmembers in trading with the Indians. The power to tax nonmembers is derived in the cases from the authority, founded on original sovereignty and guaranteed in some instances by treaties, to remove property of nonmembers from the territorial limits of the tribe. Since the tribal government has the power to exclude, it can extract a fee from nonmembers as a condition precedent to granting permission to remain or to operate within the tribal domain." Cohen 266-267 (footnotes omitted). In another chapter, entitled "The Scope of Tribal Self-Government," cited by the Secretary of the Interior and the Tribe here, Cohen describes the power of taxation as "an inherent attribute of tribal sovereignty which continues unless withdrawn or limited by treaty or by act of Congress. . . ." Id., at 142. After discussing Buster v. Wright, Cohen cites that case for the proposition that "[t]he power to tax does not depend upon the power to remove and has been upheld where there was no power in the tribe to remove the taxpayer from the tribal jurisdiction." Cohen 143. As demonstrated above, however, the license tax in Buster was predicated on the tribe's right to attach conditions on the right of nonmembers to conduct business on the reservation; the tribe could prevent such nonmembers from doing business regardless of whether it could physically remove them from the reservation. Moreover, in that same chapter on tribal self-government, Cohen recognizes that tribal taxes have been upheld on the basis of the tribe's power to remove nonmembers from the reservation, and that "[i]t is therefore pertinent, in analyzing the scope of tribal taxing powers, to inquire how far an Indian tribe is empowered to remove nonmembers from its reservation." Cohen 143. The American Indian Policy Review Commission recognized that the court decisions upholding the tribes' taxing powers "rely largely upon the power of tribes to remove persons from the reservation, and consequently, to prescribe the conditions upon which they shall enter," but argued for a broader source of the right to tax. AIPRC Final Report 178-179. 37 In Buster v. Wright, the penalty for nonpayment of the tax was the closing of the nonmember's business, enforced by the Secretary of the Interior. 135 F., at 954. In Morris v. Hitchcock, the remedy was the removal of the nonmember's cattle from the reservation, again enforced by the United States. 194 U.S., at 392, 24 S.Ct., at 715. In Maxey v. Wright, an attorney refusing to pay the license fee to the Interior Department was subject to removal from the reservation. 3 Ind.T., at 250, 54 S.W., at 810. 38 "No noncitizen is required to exercise a privilege or to pay the tax. He may refrain from the one and he remains free from liability for the other." Buster v. Wright, 135 F., at 949. 39 See supra, at 171-172. As I have indicated, see n. 21, supra, treaties recognizing the inherent power of tribal self-government have also deprived the tribes of jurisdiction over nonmembers. Nevertheless, those same treaties often specifically recognized the right of the tribe to exclude nonmembers from the reservation or to attach conditions on their entry. See e.g., Treaty with the Choctaw and Chickasaw, Art. 7, 11 Stat. 612 (1855); Treaty with the Creeks and Seminoles, Art. 15, 11 Stat. 699 (1856). See 2 C. Kappler, Indian Affairs, Laws and Treaties 7, 9, 12, 15, 17, 20, 21, 27, 30, 42, 75, 418, 682, 699, 703, 719, 761, 774, 779, 790, 794, 800, 866, 886, 888, 929, 985, 990, 998, 1008, 1016, 1021 (1904). 40 The various tribes may have taken a similar view of their power to tax at the time of the Indian Reorganization Act. Cohen's treatise notes: "The power of an Indian tribe to levy taxes upon its own members and upon nonmembers doing business within the reservations has been affirmed in many tribal constitutions approved under the Wheeler-Howard Act [Indian Reorganization Act], as has the power to remove nonmembers from land over which the tribe exercises jurisdiction." Cohen 143. The following clause from the 1935 Constitution of the Rosebud Sioux Tribe, which Cohen cites as a "typical" statement of such "tribal powers," indicates that the Tribe perceived the scope of its taxation powers over nonmembers to be narrower than the scope of that power over members. The Constitution conveys tribal power— "(h) To levy taxes upon members of the tribe and to require the performance of reservation labor in lieu thereof, and to levy taxes or license fees, subject to review by the Secretary of the Interior, upon nonmembers doing business within the reservation. "(i) To exclude from the restricted lands on the reservation persons not legally entitled to reside therein, under ordinances which shall be subject to review by the Secretary of the Interior." Ibid. 41 The Court stated: "The power to tax transactions occurring on trust lands and significantly involving a tribe or its members is a fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or necessary implication of their dependent status." 447 U.S., at 152, 100 S.Ct., at 2080. 42 The Court also cited, without discussion, the Eighth Circuit's decision in Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89 (1956). 43 A nonmember can avoid the tax by declining to do business on the reservation; the "sanction" imposed for refusal to pay the tax is denial of permission to buy cigarettes. 44 In some respects the tribal power to tax nonmembers may be greater than the taxing power of other sovereigns. States do not have any power to exclude nonresidents from their borders. Moreover, their taxing statutes, like their other laws, must comply with the Equal Protection Clause of the Fourteenth Amendment. They may not, therefore, impose discriminatory taxes as a condition attached to entry into the jurisdiction in order to engage in economic activity. But since an Indian tribe has exclusive control over the "use and occupancy" of land within its reservation, it arguably could attach special discriminatory conditions to any license to a nonmember to use or occupy a portion of that land. As stated earlier, at a minimum the equal protection components of the Fifth and Fourteenth Amendments, which limit the sovereign powers of the Federal and State Governments, do not similarly restrict the sovereign powers of an Indian tribe. See supra., at 919. 45 "[A]s the payment of a tax or license fee may be made a condition of entry upon tribal land, it may also be made a condition to the grant of other privileges, such as the acquisition of a tribal lease." Cohen 143. 46 Congress intended the Act of March 3, 1927, to make applicable to Executive Order reservations the leasing provisions already applicable to treaty reservations pursuant to the Act of May 29, 1924, ch. 210, 43 Stat. 244. S.Rep. No. 1240, 69th Cong., 2d Sess., 3 (1927). The 1927 Act thus permitted the leasing of unallotted Indian land for terms not to exceed 10 years and as much longer as oil and gas in paying quantities were found on the land. 44 Stat. (part 2) 1347. Among the purposes of the 1927 statute were to "[p]ermit the exploration for oil and gas on Executive-order Indian Reservations," to "[g]ive the Indian tribes all the oil and gas royalties," and to "[p]lace with Congress the future determination of any changes of boundaries of Executive-order reservations or withdrawals." S.Rep. No. 1240, supra, at 3. In light of these purposes, it is clear that Congress intended leases executed pursuant to the 1927 Act to be binding. The Tribe contends that the leases in these cases were executed pursuant to the Act of May 11, 1938, 52 Stat. 347, and not the 1927 Act. The Tribe notes that the lease in No. 80-15 states that it was executed pursuant to the 1938 Act. See App. 64. In response, petitioners note that, although the Tribe argues that the 1938 Act—unlike the 1927 Act—does not require that royalties be paid to the Secretary of the Interior for the benefit of the Tribe, petitioners make their royalty payments to the United States Geological Survey for the benefit of the Jicarilla Apache. See Tr. 79-80. There is no need to resolve this question, because for our purposes the provisions of the 1938 Act do not vary significantly from the provisions of the 1927 Act. The 1938 Act, like the 1927 Act, permits the leasing of Indian lands for a period "not to exceed ten years and as long thereafter as minerals are produced in paying quantities." 25 U.S.C. § 396a. One of the purposes of the 1938 Act was to establish uniformity in the leasing of tribal lands by applying the law governing oil and gas leasing to all other mineral leasing as well. S.Rep. No. 985, 75th Cong., 1st Sess., 1-2 (1937). Other purposes were to "bring all mineral leasing matters in harmony with the Indian Reorganization Act," id., at 3, and to enact changes designed "to give the Indians the greatest return from their property." Id., at 2. There is no indication in the legislative history that the purposes of the 1938 Act are in any way inconsistent with the purposes of the 1927 Act and prior legislation. Presumably the purposes of the earlier legislation were incorporated into the uniform scheme intended by the 1938 Act. 47 As Attorney General MacVeagh stated in 1881, only those permitted by the tribe to remain on the reservation may do so, "and the right to remain is gone when the permit has expired." 17 Op.Atty.Gen., at 136. 48 In Colville, the nonmember desiring to purchase cigarettes on the reservation knew that his right to do so was conditioned on his consent to pay the tax. Attorney General Griggs, in his 1900 opinion on "Trespassers on Indian Lands," discussed in similar terms the effect on tribal laws of a federal statute providing for the sale of reservation lots to non-Indians: "[T]he legal right to purchase land within an Indian nation gives to the purchaser no right of exemption from the laws of such nation, nor does it authorize him to do any act in violation of the treaties with such nation. These laws requiring a permit to reside or carry on business in the Indian country existed long before and at the time this act was passed. And if any outsider saw proper to purchase a town lot under this act of Congress, he did so with full knowledge that he could occupy it for residence or business only by permission from the Indians." 23 Op.Atty.Gen., at 217. In 1977, the American Indian Policy Review Commission noted that Indian tribes "do not both tax and receive royalties. Usually, they just receive royalties." AIPRC Final Report 344. 49 The statute did authorize the collection of severance taxes by the States. Petitioners have argued that this authorization pre-empted any tribal power to impose a comparable tax. As recognized by the Court of Appeals, however, the legislative history indicates that Congress simply did not consider the question of tribal taxes on mineral output from reservation lands. 617 F.2d 537, 547 (CA10 1980). 50 The Secretary of the Interior argues that a license or franchise issued by a governmental body does not prevent the later imposition of a tax unless the right to tax " 'has been specifically surrendered in terms which admit of no other reasonable interpretation.' " Brief for Secretary of Interior 13, n. 7 (quoting St. Louis v. United R. Co., 210 U.S. 266, 280, 28 S.Ct. 630, 634, 52 L.Ed. 1054). See also New Orleans City & Lake R. Co. v. New Orleans, 143 U.S. 192, 195, 12 S.Ct. 406, 407, 36 L.Ed. 121; New York Transit Corp. v. City of New York, 303 U.S. 573, 590-593, 58 S.Ct. 721, 729-31, 82 L.Ed. 1024. The principal issue in these cases cited by the Secretary was whether the retroactive imposition of a franchise tax violated the Contract Clause of the Constitution or was so fundamentally unfair as to constitute a denial of due process in violation of the Fourteenth Amendment. Although this argument was by no means frivolous, cf. Puerto Rico v. Russell & Co., 315 U.S. 610, 62 S.Ct. 784, 86 L.Ed. 1062, no such issue is raised here. These cases are distinguishable from the instant cases because Indian tribes do not have the same attributes of sovereignty as do States and their subdivisions. See supra, at 917-920.

12

455 U.S. 191 102 S.Ct. 929 71 L.Ed.2d 64 In re R. M. J., Appellant. No. 80-1431. Argued Nov. 9, 1981. Decided Jan. 25, 1982. Syllabus Rule 4 of the Missouri Supreme Court, regulating advertising by lawyers, states that a lawyer may include 10 categories of information in a published advertisement: name, address and telephone number; areas of practice; date and place of birth; schools attended; foreign language ability; office hours; fee for an initial consultation; availability of a schedule of fees; credit arrangements; and the fixed fee to be charged for certain "routine" legal services. Although the Rule does not state explicitly that these 10 categories of information are the only information that will be permitted, that is the interpretation given the Rule by the State Supreme Court and appellee Advisory Committee, which is charged with its enforcement. An addendum to the Rule specifies two ways in which areas of practice may be listed in an advertisement, under one of which the lawyer may use one or more of a list of 23 areas of practice but may not deviate from the precise wording stated in the Rule to describe these areas. In addition, the Rule permits a lawyer to send professional announcement cards announcing a change of address or firm name, or similar matters, but only to "lawyers, clients, former clients, personal friends, and relatives." An information was filed in the Missouri Supreme Court by appellee Advisory Committee, charging appellant, a practicing lawyer in St. Louis, Mo., with violations of Rule 4. The information charged that appellant published advertisements which listed areas of practice in language other than that specified in the Rule and which listed the courts in which appellant was admitted to practice although this information was not included among the 10 categories of information authorized by the Rule. In addition, the information charged that appellant had mailed announcement cards to persons other than those permitted by the Rule. Appellant claimed that each of the restrictions upon advertising was unconstitutional under the First and Fourteenth Amendments, but the Missouri Supreme Court upheld the constitutionality of Rule 4 and issued a private reprimand. Held: None of the restrictions in question upon appellant's First Amendment rights can be sustained in the circumstances of this case. Pp. 199-207. (a) Although the States retain the ability to regulate commercial speech, such as lawyer advertising, that is inherently misleading or that has proved to be misleading in practice, the First and Fourteenth Amendments require that they do so with care and in a manner no more extensive than reasonably necessary to further substantial interests. Pp. 199-204. (b) Because the listing published by appellant—e.g., "real estate" instead of "property law" as specified by Rule 4, and "contracts" and "securities," which were not included in the Rule's listing—has not been shown to be misleading, and appellee suggests no substantial interest promoted by the restriction, the portion of Rule 4 specifying the areas of practice that may be listed is an invalid restriction upon speech as applied to appellant's advertisements. P. 205. (c) Nor has appellee identified any substantial interest in prohibiting a lawyer from identifying the jurisdictions in which he is licensed to practice. Such information is not misleading on its face. That appellant was licensed to practice in both Illinois and Missouri is factual and highly relevant information, particularly in light of the geography of the region in which he practices. While listing the relatively uninformative fact that he is a member of the United States Supreme Court Bar could be misleading, there was no finding to this effect by the Missouri Supreme Court, there is nothing in the record to indicate it was misleading, and the Rule does not specifically identify it as potentially misleading. Pp. 205-206. (d) With respect to the restriction on announcement cards, while mailings may be more difficult to supervise, there is no indication in the record that an inability to supervise is the reason the State restricts the potential audience of the cards. Nor is it clear that an absolute prohibition is the only solution, and there is no indication of a failed effort to proceed along a less restrictive path. P. 206. Mo., 609 S.W.2d 411, reversed. Charles B. Blackmar, St. Louis, Mo., for appellant. John W. Inglish, California, Mo., for appellee. Justice POWELL delivered the opinion of the Court. 1 The Court's decision in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), required a re-examination of long-held perceptions as to "advertising" by lawyers. This appeal presents the question whether certain aspects of the revised ethical rules of the Supreme Court of Missouri regulating lawyer advertising conform to the requirements of Bates. 2 * As with many of the States, until the decision in Bates, Missouri placed an absolute prohibition on advertising by lawyers.1 After the Court's invalidation of just such a prohibition in Bates, the Committee on Professional Ethics and Responsibility of the Supreme Court of Missouri revised that court's Rule 4 regulating lawyer advertising. The Committee sought to "strike a midpoint between prohibition and unlimited advertising,"2 and the revised regulation of advertising, adopted with slight modification by the State Supreme Court, represents a compromise. Lawyer advertising is permitted, but it is restricted to certain categories of information, and in some instances, to certain specified language. 3 Thus, part B of DR2-101 of the Rule states that a lawyer may "publish . . . in newspapers, periodicals and the yellow pages of telephone directories" 10 categories of information: name, address and telephone number; areas of practice; date and place of birth; schools attended; foreign language ability; office hours; fee for an initial consultation; availability of a schedule of fees; credit arrangements; and the fixed fee to be charged for certain specified "routine" legal services.3 Although the Rule does not state explicitly that these 10 categories of information or the 3 indicated forms of printed advertisement are the only information and the only means of advertising that will be permitted,4 that is the interpretation given the Rule by the State Supreme Court and the Advisory Committee5 charged with its enforcement. 4 In addition to these guidelines, and under authority of the Rule, the Advisory Committee has issued an addendum to the Rule providing that if the lawyer chooses to list areas of practice in his advertisement, he must do so in one of two prescribed ways. He may list one of three general descriptive terms specified in the Rule—"General Civil Practice," "General Criminal Practice," or "General Civil and Criminal Practice." Alternatively, he may use one or more of a list of 23 areas of practice, including, for example, "Tort Law," "Family Law," and "Probate and Trust Law." He may not list both a general term and specific subheadings, nor may he deviate from the precise wording stated in the Rule. He may not indicate that his practice is "limited" to the listed areas and he must include a particular disclaimer of certification of expertise following any listing of specific areas of practice.6 5 Finally, one further aspect of the Rule is relevant in this case. DR2-102 of Rule 4 regulates the use of professional announcement cards. It permits a lawyer or firm to mail a dignified "brief professional announcement card stating new or changed associates or addresses, change of firm name, or similar matters." The Rule, however, does not permit a general mailing; the announcement cards may be sent only to "lawyers, clients, former clients, personal friends, and relatives."7 Mo.Rev.Stat., Sup.Ct. Rule 4, DR2-102(A)(2) (1978) (Index Vol.). II 6 Appellant graduated from law school in 1973 and was admitted to the Missouri and Illinois Bars in the same year. After a short stint with the Securities and Exchange Commission in Washington, D.C., appellant moved to St. Louis, Mo., in April 1977, and began practice as a sole practitioner. As a means of announcing the opening of his office, he mailed professional announcement cards to a selected list of addressees. In order to reach a wider audience, he placed several advertisements in local newspapers and in the yellow pages of the local telephone directory. 7 The advertisements at issue in this litigation appeared in January, February, and August 1978, and included information that was not expressly permitted by Rule 4. They included the information that appellant was licensed in Missouri and Illinois. They contained, in large capital letters, a statement that appellant was "Admitted to Practice Before THE UNITED STATES SUPREME COURT." And they included a listing of areas of practice that deviated from the language prescribed by the Advisory Committee—e.g., "personal injury" and "real estate" instead of "tort law" and "property law"—and that included several areas of law without analogue in the list of areas prepared by the Advisory Committee—e.g., "contract," "zoning & land use," "communication," "pension & profit sharing plans."8 See n.6, supra. In addition, and with the exception of the advertisement appearing in August 1978, appellant failed to include the required disclaimer of certification of expertise after the listing of areas of practice. 8 On November 19, 1979, the Advisory Committee filed an information in the Supreme Court of Missouri charging appellant with unprofessional conduct. The information charged appellant with publishing three advertisements that listed areas of law not approved by the Advisory Committee, that listed the courts in which appellant was admitted to practice, and, in the case of two of the advertisements, that failed to include the required disclaimer of certification. The information also charged appellant with sending announcement cards to "persons other than lawyers, clients, former clients, personal friends, and relatives" in violation of DR2-102(A)(2). In response, appellant argued that, with the exception of the disclaimer requirement, each of these restrictions upon advertising was unconstitutional under the First and Fourteenth Amendments. 9 In a disbarment proceeding, the Supreme Court of Missouri upheld the constitutionality of DR2-101 of Rule 4 and issued a private reprimand. 609 S.W.2d 411 (1981). But the court did not explain the reasons for its decision, nor did it state whether it found appellant to have violated each of the charges lodged against him or only some of them. Indeed, the court only purported to uphold the constitutionality of DR2-101; it did not mention the propriety of DR2-102, which governs the use of announcement cards. 10 Writing in separate dissenting opinions, Chief Justice Bardgett and Judge Seiler argued that the information should be dismissed. The dissenters suggested that the State did not have a significant interest either in requiring the use of certain, specified words to describe areas of practice or in prohibiting a lawyer from informing the public as to the States and courts in which he was licensed to practice. Nor would the dissenters have found the mailing of this sort of information to be unethical.9 III 11 In Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the Court considered whether the extension of First Amendment protection to commercial speech announced in Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), applied to the regulation of advertising by lawyers.10 The Bates Court held that indeed lawyer advertising was a form of commercial speech, protected by the First Amendment, and that "advertising by attorneys may not be subjected to blanket suppression." 433 U.S., at 383, 97 S.Ct., at 2708. 12 More specifically, the Bates Court held that lawyers must be permitted to advertise the fees they charge for certain "routine" legal services. The Court concluded that this sort of price advertising was not "inherently" misleading, and therefore could not be prohibited on that basis. The Court also rejected a number of other justifications for broad restrictions upon advertising including the potential adverse effect of advertising on professionalism, on the administration of justice, and on the cost and quality of legal services, as well as the difficulties of enforcing standards short of an outright prohibition. None of these interests was found to be sufficiently strong or sufficiently affected by lawyer advertising to justify a prohibition. 13 But the decision in Bates nevertheless was a narrow one. The Court emphasized that advertising by lawyers still could be regulated.11 False, deceptive, or misleading advertising remains subject to restraint,12 and the Court recognized that advertising by the professions poses special risks of deception—"because the public lacks sophistication concerning legal services, misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising." Id., at 383, 97 S.Ct., at 2708 (footnote omitted). The Court suggested that claims as to quality or in-person solicitation might be so likely to mislead as to warrant restriction. And the Court noted that a warning or disclaimer might be appropriately required, even in the context of advertising as to price, in order to dissipate the possibility of consumer confusion or deception.13 "[T]he bar retains the power to correct omissions that have the effect of presenting an inaccurate picture, [although] the preferred remedy is more disclosure, rather than less." Id., at 375, 97 S.Ct., at 2704.14 14 In short, although the Court in Bates was not persuaded that price advertising for "routine" services was necessarily or inherently misleading, and although the Court was not receptive to other justifications for restricting such advertising, it did not by any means foreclose restrictions on potentially or demonstrably misleading advertising. Indeed, the Court recognized the special possibilities for deception presented by advertising for professional services. The public's comparative lack of knowledge, the limited ability of the professions to police themselves, and the absence of any standardization in the "product" renders advertising for professional services especially susceptible to abuses that the States have a legitimate interest in controlling. 15 Thus, the Court has made clear in Bates and subsequent cases that regulation—and imposition of discipline—are permissible where the particular advertising is inherently likely to deceive or where the record indicates that a particular form or method of advertising has in fact been deceptive. In Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 462, 98 S.Ct. 1912, 1921, 56 L.Ed.2d 444 (1978), the Court held that the possibility of "fraud, undue influence, intimidation, overreaching, and other forms of 'vexatious conduct' " was so likely in the context of in-person solicitation, that such solicitation could be prohibited. And in Friedman v. Rogers, 440 U.S. 1, 99 S.Ct. 887, 59 L.Ed.2d 100 (1979), we held that Texas could prohibit the use of trade names by optometrists, particularly in view of the considerable history in Texas of deception and abuse worked upon the consuming public through the use of trade names. Commercial speech doctrine, in the context of advertising for professional services, may be summarized generally as follows: Truthful advertising related to lawful activities is entitled to the protections of the First Amendment. But when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse, the States may impose appropriate restrictions. Misleading advertising may be prohibited entirely. But the States may not place an absolute prohibition on certain types of potentially misleading information, e.g., a listing of areas of practice, if the information also may be presented in a way that is not deceptive. Thus, the Court in Bates suggested that the remedy in the first instance is not necessarily a prohibition but preferably a requirement of disclaimers or explanation. 433 U.S., at 375, 97 S.Ct., at 2704. Although the potential for deception and confusion is particularly strong in the context of advertising professional services, restrictions upon such advertising may be no broader than reasonably necessary to prevent the deception. 16 Even when a communication is not misleading, the State retains some authority to regulate. But the State must assert a substantial interest and the interference with speech must be in proportion to the interest served. Central Hudson Gas & ELectric Corp. v. Public Service Comm'n, 447 U.S. 557, 563-564, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341 (1980).15 Restrictions must be narrowly drawn, and the State lawfully may regulate only to the extent regulation furthers the State's substantial interest. Thus, in Bates, the Court found that the potentially adverse effect of advertising on professionalism and the quality of legal services was not sufficiently related to a substantial state interest to justify so great an interference with speech.16 433 U.S., at 368-372, 375-377, 97 S.Ct., at 2704-2705. IV 17 We now turn to apply these generalizations to the circumstances of this case.17 18 The information lodged against appellant charged him with four separate kinds of violation of Rule 4: listing the areas of his practice in language or in terms other than that provided by the Rule, failing to include a disclaimer, listing the courts and States in which he had been admitted to practice, and mailing announcement cards to persons other than "lawyers, clients, former clients, personal friends, and relatives." Appellant makes no challenge to the constitutionality of the disclaimer requirement,18 and we pass on to the remaining three infractions. 19 [8] Appellant was reprimanded for deviating from the precise listing of areas of practice included in the Advisory Committee addendum to Rule 4. The Advisory Committee does not argue that appellant's listing was misleading. The use of the words "real estate" instead of "property" could scarcely mislead the public. Similarly, the listing of areas such as "contracts" or "securities," that are not found on the Advisory Committee's list in any form, presents no apparent danger of deception. Indeed, as Chief Justice Bardgett explained in dissent, in certain respects appellant's listing is more informative than that provided in the addendum. Because the listing published by the appellant has not been shown to be misleading, and because the Advisory Committee suggests no substantial interest promoted by the restriction, we conclude that this portion of Rule 4 is an invalid restriction upon speech as applied to appellant's advertisements. 20 Nor has the Advisory Committee identified any substantial interest in a rule that prohibits a lawyer from identifying the jurisdictions in which he is licensed to practice. Such information is not misleading on its face. Appellant was licensed to practice in both Illinois and Missouri. This is factual and highly relevant information particularly in light of the geography of the region in which appellant practiced. 21 Somewhat more troubling is appellant's listing, in large capital letters, that he was a member of the Bar of the Supreme Court of the United States. See Appendix to this opinion. The emphasis of this relatively uninformative fact is at least bad taste. Indeed, such a statement could be misleading to the general public unfamiliar with the requirements of admission to the Bar of this Court. Yet there is no finding to this effect by the Missouri Supreme Court. There is nothing in the record to indicate that the inclusion of this information was misleading. Nor does the Rule specifically identify this information as potentially misleading or, for example, place a limitation on type size or require a statement explaining the nature of the Supreme Court Bar. 22 Finally, appellant was charged with mailing cards announcing the opening of his office to persons other than "lawyers, clients, former clients, personal friends and relatives." Mailings and handbills may be more difficult to supervise than newspapers. But again we deal with a silent record. There is no indication that an inability to supervise is the reason the State restricts the potential audience of announcement cards. Nor is it clear that an absolute prohibition is the only solution. For example, by requiring a filing with the Advisory Committee of a copy of all general mailings, the State may be able to exercise reasonable supervision over such mailings.19 There is no indication in the record of a failed effort to proceed along such a less restrictive path.20 See Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S., at 566, 100 S.Ct., at 2351 ("we must determine whether the regulation . . . is not more extensive than is necessary to serve" the governmental interest asserted). 23 In sum, none of the three restrictions in the Rule upon appellant's First Amendment rights can be sustained in the circumstances of this case. There is no finding that appellant's speech was misleading. Nor can we say that it was inherently misleading, or that restrictions short of an absolute prohibition would not have sufficed to cure any possible deception. We emphasize, as we have throughout the opinion, that the States retain the authority to regulate advertising that is inherently misleading or that has proved to be misleading in practice. There may be other substantial state interests as well that will support carefully drawn restrictions. But although the States may regulate commercial speech, the First and Fourteenth Amendments require that they do so with care and in a manner no more extensive than reasonably necessary to further substantial interests. The absolute prohibition on appellant's speech, in the absence of a finding that his speech was misleading, does not meet these requirements. 24 Accordingly, the judgment of the Supreme Court of Missouri is Reversed. THT APPENDIX TO OPINION OF THE COURT 25 The advertisement above appeared in the January/February 1978 issue of the West End Word and was the basis for Count I of the Information. J , R M 26 * Corporate * Personal Injury 27 * Partnership * Trials & Appeals 28 * Real Estate * Securities-Bonds 29 * Tax * Wills, Estate-Planning 30 * Bankruptcy * Pension- 31 * Probate Profit-Sharing 32 * Contracts * Workman's 33 * Anti-Trust Compensation 34 * Labor * Divorce, Separation 35 * Criminal * Custody, Adoption Admitted To Practice Restore THE UNITED STATES SUPREME COURT Licensed In: MISSOURI & ILLINOIS 36 120 § Central--------------------------721-5321 37 The advertisement above appeared in the yellow pages of the Southwestern Bell Telephone Co. telephone directory for St. Louis Suburban West issued in February 1978, and was the basis for Count II of the Information. 1 Prior to the 1977 revision, Rule 4 provided in pertinent part: "(A) A lawyer shall not prepare, cause to be prepared, use, or participate in the use of, any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients; as used herein, 'public communication' includes, but is not limited to, communication by means of television, radio, motion picture, newspaper, magazine, or book. "(B) A lawyer shall not publicize himself, his partner, or associate as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in city or telephone directories, or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf . . ." Mo.Sup.Ct.Rules Ann., Rule 4, DR2-101, p. 63 (Vernon 1981) (historical note). 2 Report of Committee to Chief Justice of Supreme Court of Missouri (Sept. 9, 1977), reprinted in App. A-30. 3 The 10 listed "routine" services are: an uncontested dissolution of marriage; an uncontested adoption; an uncontested personal bankruptcy; an uncomplicated change of name; a simple warranty or quitclaim deed; a simple deed of trust; a simple promissory note; an individual Missouri or federal income tax return; a simple power of attorney; and a simple will. Mo.Rev.Stat., Sup.Ct. Rule 4, DR2-101(B) (1978) (Index Vol.). The Rule authorizes the Advisory Committee to approve additions to this list of routine services. Ibid. 4 Indeed, on its face, the Rule would appear to suggest that its specific provisions are intended only to provide a safe harbor, and not to prohibit all other forms of advertising or categories of information. This impression is conveyed by the Rule's inclusion of a general prohibition on misleading advertising in DR2-101(A): "A lawyer shall not, on behalf of himself, his partner, associate or any other lawyer affiliated with him or his firm, use or participate in the use of any form of public communication respecting the quality of legal services or containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim." Rule 4, DR2-101(A). 5 The Advisory Committee is a standing committee of the Supreme Court of Missouri and is responsible for prosecuting disciplinary proceedings and for giving formal and informal opinions on the Canons of Professional Responsibility. See Rule 5. 6 The addendum to the rule promulgated by the Advisory Committee provided in relevant part as follows: "[T]he following areas for fields of law may be advertised by use of the specific language hereinafter set out: 1. 'General Civil Practice' 2. 'General Criminal Practice' 3. 'General Civil and Criminal Practice.' "If a lawyer or law firm uses one of the above, no other area can be used . . . . If one of the above is not used, then a lawyer or law firm can use one or more of the following: 1. 'Administrative Law' 2. 'Anti-Trust Law' 3. 'Appellate Practice' 4. 'Bankruptcy' 5. 'Commercial Law' 6. 'Corporation Law and Business Organizations' 7. 'Criminal Law' 8. 'Eminent Domain Law' 9. 'Environmental Law' 10. 'Family Law' 11. 'Financial Institution Law' 12. 'Insurance Law' 13. 'International Law' 14. 'Labor Law' 15. 'Local Government Law' 16. 'Military Law' 17. 'Probate and Trust Law' 18. 'Property Law' 19. 'Public Utility Law' 20. 'Taxation Law' 21. 'Tort Law' 22. 'Trial Practice' 23. 'Workers Compensation Law.' No deviation from the above phraseology will be permitted and no statement of limitation of practice can be stated. "If one or more of these specific areas of practice are used in any advertisement, the following statement must be included . . .: 'Listing of the above areas of practice does not indicate any certification of expertise therein.' " Rule 4, Addendum III (Adv.Comm. Nov. 13, 1977). 7 This provision of Rule 4 was not altered by the 1977 amendments. 8 In an advertisement published in the August 1978 yellow pages for St. Louis, and typical of appellant's other advertisements, appellant included a listing of 23 areas of practice. Four of the areas conformed to the language prescribed in the Rule—"bankruptcy," "anti-trust," "labor," and "criminal." Eleven of the areas deviated from the precise language of the Rule "tax," "corporate," "partnership," "real estate," "probate," "wills, estate planning," "personal injury," "trials & appeals," "workmen's compensation," "divorce-separation," and "custody-adoption," instead of, respectively, and as required by the Rule, "taxation law," "corporation law and business organizations," "property law," "probate & trust law," "tort law," "trial practice," "appellate practice," "workers compensation law," and "family law." Eight other areas listed in the advertisement are not listed in any manner by the Advisory Committee's addendum: "contract," "aviation," "securities-bonds," "pension & profit sharing plans," "zoning & land use," "entertainment/sports," "food, drug & cosmetic," and "communication." A photograph of the advertisements as they appeared in the St. Louis, Suburban West, Telephone Directory for February 1978, and in the January/February 1978 issue of the West End Word is reproduced as an Appendix to this opinion. In all of appellant's advertisements the statement as to his membership in the Bar of the United States Supreme Court was printed conspicuously in large capital letters. 9 The dissenting judges differed in several respects. Chief Justice Bardgett considered that appellant's listing of the fact that he was admitted to practice before the United States Supreme Court was not improper; Judge Seiler argued that this information was more misleading than helpful. Moreover, Judge Seiler argued that appellant should not be penalized for having omitted a disclaimer of certification when the addendum requiring the disclaimer was not available until after appellant had placed the advertisements and after it was too late to add the disclaimer. Chief Justice Bardgett's dissent omits any mention of appellant's failure to include a disclaimer. See n.18, infra. Finally, Chief Justice Bardgett expressed his belief that our decision in Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), concerning the regulation of commercial speech, does not apply in its entirety to the regulation of lawyer advertising. Judge Seiler appeared to take the opposite position. Both of the dissenting opinions reflect a thoughtful examination of the charges made against appellant. 10 The Court in Virginia Pharmacy, expressly reserved this question: "We stress that we have considered in this case the regulation of commercial advertising by pharmacists. Although we express no opinion as to other professions, the distinctions, historical and functional, between professions, may require consideration of quite different factors. Physicians and lawyers, for example, do not dispense standardized products; they render professional services of almost infinite variety and nature, with the consequent enhanced possibility for confusion and deception if they were to undertake certain kinds of advertising." 425 U.S., at 773, n. 25, 96 S.Ct., at 1831, n. 25. 11 Even as to price advertising, the Court suggested that some regulation would be permissible. For example, the bar may "define the services that must be included in an advertised package. . . ." 433 U.S., at 373, n. 28, 97 S.Ct., at 2703, n. 28, and the bar could require disclaimers or explanations to avoid false hopes, id., at 384, 97 S.Ct., at 2709 ("[S]ome limited supplementation, by way of warning or disclaimer or the like, might be required of even an advertisement of the kind ruled upon today so as to assure that the consumer is not misled"). Presumably, too, the bar may designate the services that may be considered "routine." Moreover, the Court might reach a different decision as to price advertising on a different record. If experience with particular price advertising indicates that the public is in fact misled or that disclaimers are insufficient to prevent deception, then the matter would come to the Court in an entirely different posture. The commercial speech doctrine is itself based in part on certain empirical assumptions as to the benefits of advertising. If experience proves that certain forms of advertising are in fact misleading, although they did not appear at first to be "inherently" misleading, the Court must take such experience into account. Cf. Bates v. State Bar of Arizona, 433 U.S., at 372, 97 S.Ct., at 2703 ("We are not persuaded that restrained professional advertising . . . will be misleading"). 12 See Friedman v. Rogers, 440 U.S. 1, 11, n. 9, 99 S.Ct. 887, 895, n. 9, 59 L.Ed.2d 100 (1979) ("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' " (quoting Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978)); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S., at 771-772, and n. 24, 96 S.Ct., at 1830-1831 ("Untruthful speech, commercial or otherwise, has never been protected for its own sake. . . . 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") (citations and footnote omitted). 13 In addition, the Bates Court noted that reasonable restrictions on the time, place, and manner of advertising would still be permissible, while "the special problems of advertising on the electronic broadcast media will warrant special consideration." 433 U.S., at 384, 97 S.Ct., at 2709. 14 The Model Rules of Professional Conduct proposed by the American Bar Association Commission on Evaluation of Professional Standards provide that "a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, radio or television, or through written communication not involving personal contact." Rule 7.2(a). Rule 7.1 prohibits misleading advertising in the following terms: "A lawyer shall not make any false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it: "(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; "(b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or "(c) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated." Commentary following the Rule suggests that the Rule would prohibit "advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer's record in obtaining favorable verdicts, and advertisements containing client endorsements." It is understood that the format of the proposed new Rules will be considered by the House of Delegates of the American Bar Association at its 1982 midyear meeting and that the substance of the Rules will be considered at the 1982 annual meeting. We, of course, imply no view as to these proposals. 15 See Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S., at 566, 100 S.Ct., at 2351: "In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest." As the discussion in the text above indicates, the Central Hudson formulation must be applied to advertising for professional services with the understanding that the special characteristics of such services afford opportunities to mislead and confuse that are not present when standardized products or services are offered to the public. See n.10, supra. 16 We recognize, of course, that the generalizations summarized above do not afford precise guidance to the bar and the courts. They do represent the general principles that may be distilled from our decisions in this developing area of the law. As they are applied on a case-by-case basis—as in Part IV of this opinion—more specific guidance will be available. 17 We note that the restrictions placed upon appellant's speech by Rule 4 imposed a restriction only upon commercial speech "expression related solely to the economic interests of the speaker and its audience." Central Hudson Gas & Electric Corp. v. Public Service Comm'n, supra, at 561, 100 S.Ct., at 2348. By describing his services and qualifications, appellant's sole purpose was to encourage members of the public to engage him for personal profit. 18 At oral argument counsel for appellant stated that the constitutionality of the disclaimer requirement was not before the Court, and that "[t]he disciplinary action was not based on a failure to include the disclaimer." Tr. of Oral Arg. 16. Although, the Supreme Court of Missouri did not explicitly indicate whether appellant was in violation of each and every one of the charges made against him, that is the implication of the opinion particularly when read in light of the more detailed dissenting opinions. 19 Rule 7.2(b) of the proposed Model Rules of Professional Conduct of the American Bar Association requires that "[a] copy or recording of an advertisement or written communication shall be kept for one year after its dissemination." 20 The Advisory Committee argues that a general mailing from a lawyer would be "frightening" to the public unaccustomed to receiving letters from law offices. If indeed this is likely, the lawyer could be required to stamp "This is an Advertisement" on the envelope. See Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 541-542, 100 S.Ct. 2326, 2335, 65 L.Ed.2d 319 (1980) (billing insert is not a significant intrusion upon privacy, and privacy interest can be protected through means other than a general prohibition).

56

455 U.S. 245 102 S.Ct. 1047 71 L.Ed.2d 120 James H. TULLY, Jr., et al.v.MOBIL OIL CORPORATION et al. No. 81-96. Feb. 22, 1982. PER CURIAM. 1 In June 1980, New York State established a two percent tax on the gross receipts of oil companies limited to their revenues derived from their activities within the State. N.Y. Tax Law § 182, ch. 272, § 182 (McKinney Supp. 1980). Desiring that the tax actually be borne by the oil companies, its intended objects, rather than by consumers, the New York Legislature prohibited the companies from passing on the cost of the tax in the prices of their products sold in New York. Ibid. The passthrough prohibition was sufficiently vital that the law provided that if the prohibition was "adjudged by any court of competent jurisdiction to be invalid and after exhaustion of all further judicial review" the tax would cease to exist on the 10th day thereafter. Ch. 272, § 12(a). All tax liabilities accrued to that day, however, would remain in full force and effect. It was also provided that the tax would self-destruct 10 days after any court "issues any order, judgment, injunction or stay prohibiting" the enforcement of the antipassthrough provision. Ch. 272, § 12(b). 2 The appellees are 10 oil companies subject to the tax who instituted suit to enjoin the antipassthrough provision, claiming that it was in conflict with and therefore pre-empted by federal price control authority under the Emergency Petroleum Allocation Act (EPAA), 15 U.S.C. § 751 et seq. The District Court agreed with that position and enjoined enforcement of the provision. 499 F.Supp. 888 (ND NY 1980). The Court of Appeals for the Second Circuit held that appellate consideration of the preemption issue was a matter for the Temporary Emergency Court of Appeals (Em.App.). 639 F.2d 912, cert. denied sub nom. Tully v. New England Petroleum Corp., 452 U.S. 967, 101 S.Ct. 3123, 69 L.Ed.2d 981 (1981). That court, in turn, affirmed the District Court's decision, but noted that the federal statute would expire by its own terms in September 1981, and that expiration of the Act "will signal the end of federal concern in this area." 653 F.2d 497, 502 (1981). 3 New York State tax officials then appealed TECA's decision to this Court. We now vacate the judgment and remand the case to TECA for reconsideration in light of the expiration of federal price control authority.1 4 The normal rule in a civil case is § that we judge it in accordance with the law as it exists at the time of our decision. Kremens v. Bartley, 431 U.S. 119, 129, 97 S.Ct. 1709, 1715, 52 L.Ed.2d 184 (1977); Fusari v. Steinberg, 419 U.S. 379, 387, 95 S.Ct. 533, 538, 42 L.Ed.2d 521 (1975). The expiration date for the federal statute has come and gone; the only barrier to the enforcement of the antipassthrough provision no longer exists. However, the injunction entered by the District Court and affirmed by TECA did not terminate on October 1, 1981, the date that TECA acknowledged to signal the end of federal concern in the area. Thus, in its present form the declaration of the invalidity of the antipassthrough provision and the accompanying injunction against enforcing it have no current validity and must be set aside.2 5 Ordinarily, the determination that t the law has so changed as to eliminate a conflict between federal and state law would conclude the dispute. In this case, however, both parties insist that an important controversy continues over the appellees' legal authority to pass through to consumers taxes that were paid or accrued prior to October 1. They also suggest that the validity of the New York tax itself is in question because of the "self-destruct" provisions of the statute. These matters are relevant to this litigation because, being predicated on the declaration of invalidity of the New York statute with respect to the period prior to October 1, 1981, they may constitute "remaining live issues [which] supply the constitutional requirement of a case or controversy." Powell v. McCormack, 395 U.S. 486, 497, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969). Now that the operation of the passthrough prohibition is not blocked by conflicting federal law, a question arises as to the degree to which the resolution of these secondary issues will turn on the earlier finding of pre-emption, even if correct. Is there, for example, any federal interest that would prevent the State of New York from now enforcing its law so as to prevent appellees from passing through taxes which accrued prior to October 1? 6 We express no opinion on the ultimate merit of these contentions. We leave to TECA, a court intimately familiar with the intricacies of federal energy regulation, the task of deciding in the first instance what effect, if any, the expiration of federal price authority has on these collateral matters.3 7 Regardless of what TECA may decide with respect to those issues, it is clear that the judgment and injunction are not appropriately framed for this Court to review. Therefore, the judgment of the Court of Appeals is vacated, and the case is remanded to TECA for reconsideration in light of the expiration of federal price control authority under the EPAA. 8 So ordered. 9 Justice BRENNAN would set the case for oral argument. 10 Justice STEVENS, dissenting. 11 Federal price control authority under the Emergency Petroleum Allocation Act, 15 U.S.C. § 751 et seq., pre-empted the authority of the State of New York to control prices of petroleum products. In this case, the Temporary Emergency Court of Appeals held that the antipassthrough provision of N.Y. Tax Law § 182 (McKinney Supp.1980) was "clearly a price control measure"1 that could not be enforced while the federal authority was effective. The court recognized, however, that the federal bar would expire on September 30, 1981, and that the import of its decision was limited to the period prior to that date.2 12 In its appeal to this Court, the New York State Tax Commission does not ask us to consider any question concerning the meaning or enforceability of its laws during the period after the expiration of federal price control authority. Such questions are not our business and are not presented by this litigation. Rather, the appeal by the Commission presents the question whether the then-existing federal price control authority prevented the State from fixing the economic burden of a tax imposed upon companies that sell petroleum products.3 The Temporary Emergency Court of Appeals correctly answered that question. Since the subsequent expiration of the federal authority has no bearing on that question, I simply would affirm its judgment.4 1 We find that this is a proper appeal under 28 U.S.C. § 1254(2). The appellees argue that this Court only has jurisdiction to review TECA decisions by writ of certiorari. They point to the jurisdictional provisions incorporated in the Act which provide that "[w]ithin thirty days after entry of any judgment or order by the [TECA], a petition for a writ of certiorari may be filed in the Supreme Court of the United States, and thereupon the judgment or order shall be subject to review by the Supreme Court in the same manner as a judgment of a United States court of appeals as provided in [28 U.S.C. § 1254]." § 211(g) of the Economic Stabilization Act of 1970 (ESA), 84 Stat. 800, note following 12 U.S.C. § 1904, incorporated by reference in the EPAA, 15 U.S.C. § 754(a). There is no indication that this provision, obviously directed at expediting review, was intended to substitute for § 1254(2)'s general grant of appellate jurisdiction over decisions from the "courts of appeals" invalidating state statutes on federal constitutional grounds. Congress has granted TECA "the powers of a circuit court of appeals with respect to the jurisdiction conferred upon it." ESA § 211(b)(1). It is logical that Congress intended its exercise of such powers to be subject to the same review. 2 To be sure, the expiration provision contained in the EPAA states that "such expiration shall not affect any action or pending proceedings, administrative, civil, or criminal, not finally determined on such date, nor any administrative, civil, or criminal action or proceeding, whether or not pending, based upon any act committed or liability incurred prior to such expiration date." 15 U.S.C. § 760g. Whatever bearing this saving clause may have upon other aspects of the case, it surely cannot mean that, despite the expiration of the preempting federal law, New York should be permanently enjoined from enforcing its antipassthrough provision. 3 One question which arises is whether the saving clause in the federal statute, see n. 2, supra, applies here or whether it should be read as concerned only with administrative or judicial proceedings brought under the EPAA to enforce or otherwise adjudicate liabilities under that statute. 1 "The anti-passthrough provision is clearly a price control measure in exercise of the State's police power. The stated purpose of the provision is to prevent 'further increases in the price of petroleum products to consumers,' and to prevent the tax from 'fueling inflation by prohibiting pass through of such tax to the consumers of this state.' N.Y. Act, Ch. 272, § 1. As the Court of Appeals noted in another context, '[t]his objective is certainly not an exercise of a taxing power but a police power affecting the price structure of petroleum products.' Mobil Oil Corp. v. Tully, supra [639 F.2d 912] at 918. We agree with this observation." 653 F.2d 497, 501 (Em.App.1981). 2 "Any attempt by New York State to affect the structure of prices charged by the oil companies pursuant to federal regulation is barred by conflict with the federal scheme. The EPCA [Energy Policy Conservation Act, which added 15 U.S.C. § 760g to the EPAA] expires by its terms on September 30, 1981. 15 U.S.C. § 760g. In the meantime, the goals to control the impact of OPEC determinations regarding production and prices are viable. At the present time price decontrol has been determined by the President to be the best method to achieve an enunciated goal. The state statute under attack here is an instrument of price control and in conflict with the objectives of the program. See Ray v. Atlantic Richfield, 435 U.S. 151, 178, 98 S.Ct. 988, 1004, 55 L.Ed.2d 179 (1978). "When the statute expires in September 1981, it will signal the end of federal concern in this area. Until that time the state statute is in conflict with the federal statute and regulations." Id., at 502. 3 The three questions presented in the jurisdictional statement read as follows: "1. Does the Tax Injunction Act, 28 U.S.C. § 1341, deprive federal district courts of jurisdiction to enjoin enforcement of a provision of a New York State tax law when the effect of the injunction would be to terminate the assessment, levy, and collection of the tax? "2. Did the Energy Policy and Conservation Act of 1975 and the revocation, pursuant to its terms, by the Department of Energy of regulations that had set maximum allowable prices for certain petroleum products, prohibit the states from fixing the economic burden of a tax imposed upon companies that sell petroleum products? "3. Did those federal regulations, when they were effective, prevent the states from exercising such a power?" Juris. Statement ii. I am satisfied that the Court of Appeals for the Second Circuit correctly answered the first question when it held that the antipassthrough provision of the New York statute was an exercise of the State's police power and not its taxing power. 639 F.2d 912, 917-918, cert. denied sub nom. Tully v. New England Petroleum Corp., 452 U.S. 967, 101 S.Ct. 3123, 69 L.Ed.2d 981 (1981). The injunction entered by the District Court did not enjoin New York from collecting the tax; it merely enjoined the enforcement of the antipassthrough provision. Unless that injunction is construed to have expired by its terms, it will, of course, be subject to modification, on the Commission's motion, to eliminate any federal objection to the enforcement of the antipassthrough provision subsequent to the expiration of federal price control authority. 4 I agree with the Court that our appellate jurisdiction has properly been invoked. See ante, at 246-247, n.1.

89

455 U.S. 265 102 S.Ct. 1059 71 L.Ed.2d 137 Elvina M. HERWEG, by her Husband and Next Friend, Darrell E. Herweg and Darrell E. Herweg, etc., Petitioners,v.Robert D. RAY, Governor of Iowa, et al. No. 80-60. Jan. 13, 1982. Decided Feb. 23, 1982. Syllabus Section 1902(a)(17)(D) of the Social Security Act (Act) provides that, in calculating benefits, state Medicaid plans must not "take into account the financial responsibility of any individual for any applicant or recipient under the plan unless such applicant or recipient is such individual's spouse." Section 1902(a)(17)(B) provides that participating States must grant benefits to eligible individuals "taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary [of Health and Human Services (HHS) ], available to the applicant or recipient." Section 1902(a)(10)(A) requires States that have not exercised the so-called § 209(b) option, to provide Medicaid assistance to all recipients of benefits under the Supplemental Security Income for the Aged, Blind, and Disabled (SSI) program. A federal regulation governing the "optional categorically needy" provides that if only one spouse is eligible for Medicaid, the States must "deem" income of the other spouse, i.e., consider the latter's income as "available" to the Medicaid applicant, for one month after the spouses cease to live together, following which period only the income actually contributed may be considered. After petitioner wife, as a result of cerebral hemorrhages, was placed in a long-term care facility in Iowa, which has not exercised the § 209(b) option, her petitioner husband applied for Medicaid assistance on her behalf. She is part of the optional categorically needy since she is eligible for, but does not receive, SSI benefits. Iowa, in calculating the wife's Medicaid benefits, "deemed" or attributed income earned by the husband to the wife in a manner inconsistent with the federal regulation. Petitioners then filed suit in Federal District Court, challenging Iowa's "deeming" of the husband's income. After certifying a class of plaintiffs which included SSI recipients as well as the optional categorically needy, the District Court held that § 1902(a)(17) required Iowa's procedures to "provide for a factual determination in each instance of the amount of the spouse's income which is in fact reasonably available for the support of the institutionalized spouse," and that the federal time-limitation regulation was inconsistent with § 1902(a)(17), because it disabled the States in certain instances from considering the spouse's income as available to the applicant. In response to this order, Iowa adopted a procedure for making individualized factual determinations of the amount of income available to an institutionalized spouse, and the District Court approved the plan. On petitioners' appeal, the Court of Appeals affirmed. Held: 1. With regard to SSI recipients, the District Court's order conflicts with § 1902(a)(10)(A) of the Act, because it permits Iowa to deny Medicaid benefits to SSI recipients. To the extent that the order forbids "deeming" under any circumstances, it conflicts with the holding in Schweiker v. Gray Panthers, 453 U.S. 34, 101 S.Ct. 2633, 69 L.Ed.2d 460, that Congress intended to permit a state Medicaid plan to deem the income from the applicant's spouse as part of the available income that the state plan may consider in determining eligibility. Pp. 272-273. 2. Section 1902(a)(17)(D) does not preclude the Secretary of HHS from promulgating regulations that impose time limitations upon the States' ability to "deem" income between spouses who do not share the same household. In imposing such time limitations, the Secretary has done nothing more than define what income is "available," pursuant to § 1902(a)(17)(B). There is nothing in § 1902(a)(17)(D) that precludes the Secretary from imposing these limitations or that either disables him from defining the term "available" in circumstances where the applicant and spouse no longer live together or gives the States authority to "deem" income unimpeded by the Secretary's broad authority under § 1902(a)(17)(B) to determine what income should be considered available to the Medicaid applicant. The Secretary has not exceeded his authority in promulgating the time-limitation regulation applicable in this case, and such regulation is neither arbitrary nor capricious. Pp. 273-278. 619 F.2d 1265 reversed and remanded. Neal S. Dudovitz, Los Angeles, Cal., for petitioners. Brent R. Appel, First Asst. Atty. Gen., Des Moines, Iowa, for respondents. Justice REHNQUIST delivered the opinion of the Court. 1 Last Term in Schweiker v. Gray Panthers, 453 U.S. 34, 49-50, 101 S.Ct. 2633, 2643, 69 L.Ed.2d 460 (1981), we upheld the validity of federal Medicaid regulations that permit "deeming" of income between spouses in those States that have exercised the so-called "§ 209(b) option" provided for in the Social Security Act, 79 Stat. 343, as amended, 42 U.S.C. § 1396 et seq. (1976 ed. and Supp.III). "Deeming," in the parlance of the Social Security laws and regulations, means that a State determines eligibility by assuming that a portion of the spouse's income is "available" to the applicant. Because an individual's eligibility for Medicaid benefits depends in part on the financial resources that are "available" to him, "[d]eeming . . . has the effect of reducing both the number of eligible individuals and the amount of assistance paid to those who qualify." Schweiker v. Gray Panthers, supra, at 36, 101 S.Ct., at 2636. We rejected contentions that these regulations were arbitrary or capricious and that the regulations were inconsistent with § 1902(a)(17) of the Social Security Act, 42 U.S.C. § 1396a(a)(17).1 453 U.S., at 43, 101 S.Ct., at 2640. In the present case, we are called upon to decide to what extent the State of Iowa, an "SSI State," may consider the income of the institutionalized Medicaid applicant's noninstitutionalized spouse in determining eligibility for Medicaid. 2 As we explained in greater detail in Gray Panthers, supra, Medicaid as originally enacted "required participating States to provide medical assistance to 'categorically needy' individuals who received cash payments under one of four welfare programs established elsewhere in the [Social Security] Act." Id., at 37, 101 S.Ct., at 2636. This program was restructured in 1972 by Congress, when it replaced three of the four categorical programs with Supplemental Security Income for the Aged, Blind, and Disabled (SSI), 42 U.S.C. § 1381 et seq. (1976 ed. and Supp.III). Fearing that some States might withdraw from the Medicaid program rather than bear the increased costs imposed by the restructuring, Congress offered the States the "§ 209(b) option." 42 U.S.C. § 1396a(f). Under the § 209(b) option, the States may elect to provide Medicaid assistance only to those individuals who would have been eligible under the State's Medicaid plan in effect on January 1, 1972. In other words, the § 209(b) option allows the States to avoid the effect of the link between the SSI and Medicaid programs: States may become either "§ 209(b) States" or "SSI States." 3 If a State participates in the Medicaid program without exercising the § 209(b) option, the State is required to make Medicaid assistance available to all recipients of SSI benefits. 42 U.S.C. § 1396a(a)(10)(A); 42 CFR § 435.120 (1980).2 SSI States, however, are not limited to providing Medicaid benefits to SSI recipients. The Medicaid program offers participating States the option of providing Medicaid assistance to certain other groups of individuals, see 42 U.S.C. § 1396a(a)(10)(C), one of which is the "optional categorically needy." See 42 CFR §§ 435.200-435.231 (1980).3 Included among the "optional categorically needy," are (1) individuals who would be eligible for, but for some reason are not receiving, SSI benefits and (2) individuals who would be eligible for SSI benefits but for their institutionalized status. 42 CFR §§ 435.210-435.211 (1980). 4 With regard to the "optional categorically needy," the Secretary's regulations require the States to "deem" the income and resources of spouses who share the same household. 42 CFR § 435.723(b) (1980). Where both spouses are eligible for Medicaid, the States must "deem" income for the first six months after the spouses cease to live together. After this 6-month period, the States may consider only the income and resources actually contributed by one spouse to the other. § 435.723(c). If only one spouse is eligible for Medicaid, a similar rule applies but the time period is one month instead of six. § 435.723(d).4 In effect, § 435.723 places time limitations on the States' ability to consider the spouse's income as "available" to the applicant after the spouses cease to live together. The question addressed by the lower courts, and now presented for our decision, is whether this regulation is a permissible exercise of the Secretary's authority under the Act to define what income is "available." 5 * Petitioner Elvina Herweg has been in a comatose state since August 1976 as a result of two cerebral hemorrhages. When she was placed in a long-term care facility, her husband, petitioner Darrell Herweg, applied for Medicaid assistance on Elvina's behalf. Elvina does not receive SSI benefits, although the parties and the United States as amicus curiae agree that she is eligible to receive such benefits.5 Iowa applied its own formula to determine Elvina's eligibility for Medicaid and to ascertain the amount Darrell would be required to contribute toward his wife's care. This formula was based on the income Darrell earned as a butcher and on standard living allowances allowed Darrell and his three children living at home. In other words, Iowa was "deeming," or attributing, income earned by one spouse to the other. 6 Iowa, however, was deeming in a manner inconsistent with the Secretary's regulations, which place time limitations upon the States' ability to consider as available to the applicant his spouse's income where the spouses do not share the same household. Supra, at 269 and this page, and n. 4. Because Elvina was institutionalized and because Darrell is not eligible for Medicaid, the Secretary's regulations prohibit Iowa from considering Darrell's income after one month from the time the couple ceased to live together. See 42 CFR § 435.723(d) (1980). 7 Petitioners filed the instant suit in the United States District Court for the Southern District of Iowa challenging Iowa's "deeming" of the income of a Medicaid applicant's spouse.6 After certifying a class of plaintiffs,7 the District Court held that § 1902(a)(17) of the Social Security Act, 42 U.S.C. § 1396a(a)(17), required Iowa's procedures to "provide for a factual determination in each instance of the amount of the spouse's income which is in fact reasonably available for the support of the institutionalized spouse. . . . Such determination must give due consideration to the individual obligations and the particular needs of each spouse and family." 443 F.Supp. 1315, 1319 (1978). In interpreting § 1902(a)(17), the District Court concluded that " 'deeming' is contrary to congressional intent whether income of the non-institutionalized spouse is deemed available or unavailable." Id., at 1320. The District Court noted that the predecessor to 42 CFR § 435.723 (1980)8 was inconsistent with its interpretation of § 1902(a)(17). In the District Court's view, therefore, the Secretary's regulation was inconsistent with § 1902(a)(17) because the regulation disabled the States in certain instances from considering the spouse's income as available to the applicant. 8 In response to this order, Iowa adopted a procedure for making individualized factual determinations of the amount of income available to an institutionalized spouse. The District Court approved this plan and petitioners appealed. The Court of Appeals for the Eighth Circuit affirmed by an equally divided Court. 619 F.2d 1265 (1980) (en banc). We reverse. II 9 Although Elvina Herweg does not receive SSI benefits, the class certified without objection by the District Court includes SSI recipients. We therefore construe the order entered by the District Court, and the plan adopted by Iowa in response, as applying both to SSI recipients and to the optional categorically needy. A. 10 With regard to recipients of SSI benefits, the District Court's order clearly conflicts with § 1902(a)(10)(A) of the Social Security Act, 42 U.S.C. § 1396a(a)(10)(A), which requires States not having exercised the § 209(b) option to provide Medicaid assistance to all SSI recipients.9 42 CFR § 435.120 (1980). See Beltran v. Myers, 451 U.S. 625, 626, n. 3, 101 S.Ct. 1961, 1962, n. 3, 68 L.Ed.2d 495 (1981). The SSI program, contained in Title XVI of the Social Security Act, 42 U.S.C. § 1382 et seq. (1976 ed. and Supp.III), contains its own eligibility provisions. See, e.g., 42 U.S.C. §§ 1382(a)(1), 1382c(b), (f)(1). Pursuant to the District Court's order, however, Iowa is permitted to deny Medicaid benefits to institutionalized SSI recipients if, after making an individualized factual determination, Iowa concludes that the income of the SSI recipient's spouse should be considered available even though it was not actually contributed. Because Congress has clearly spoken in this regard, to the extent it permits Iowa to deny Medicaid assistance to SSI recipients, the District Court's order cannot stand.10 11 In requiring individualized determinations of income available to the Medicaid applicant, the District Court held that the Secretary has exceeded his authority in permitting any "deeming" whatsoever. In Schweiker v. Gray Panthers, 453 U.S., at 45, 101 S.Ct., at 2641, however, we held that Congress intended to permit a state Medicaid plan to deem the income from the applicant's spouse as part of the available income which the state plan may consider in determining eligibility. Thus, to the extent that the District Court's order forbids deeming under any circumstances, the order conflicts with our decision in Gray Panthers. B 12 The issue that remains, therefore, is whether § 1902(a)(17) precludes the Secretary from promulgating regulations that impose time limitations upon the States' ability to consider the income of the institutionalized applicant's spouse. 13 Relying on § 1902(a)(17)(D),11 respondents argue that the Secretary has exceeded his authority in placing time limitations upon the States' authority to consider the financial responsibility of spouses. Subsection (17)(D), respondents argue, evidences Congress' intent to permit the States to consider the the financial responsibility of spouses and parents. Nothing in the statute or the legislative history,12 respondents contend, suggests that Congress intended to prevent the States from enforcing their financial responsibility policies simply because the Medicaid applicant is institutionalized. 14 We think, however, that respondents overemphasize the effect of subsection (17)(D). That provision may not be read independently of subsection (17)(B). Subsection (17)(B) provides that participating States must grant benefits to eligible individuals "taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant." 42 U.S.C. § 1396a(a)(17)(B) (emphasis added). In Gray Panthers, we recognized that subsection (17)(B) delegates to the Secretary broad authority to prescribe standards setting eligibility requirements for state Medicaid plans. In view of Congress' explicit delegation of authority to give substance to the meaning of "available," the Secretary's definition of the term is " 'entitled to more than mere deference or weight.' " Schweiker v. Gray Panthers, supra, at 44, 101 S.Ct., at 2640 quoting Batterton v. Francis, 432 U.S. 416, 426, 97 S.Ct. 2399, 2406, 53 L.Ed.2d 448 (1977). Because Congress has entrusted the primary responsibility of interpreting a statutory term to the Secretary rather than to the courts, his definition is entitled to " 'legislative effect.' " Schweiker v. Gray Panthers, supra, at 44, 101 S.Ct., at 2640; Batterton v. Francis, supra, at 426, 97 S.Ct., at 2406. As in Gray Panthers and Batterton, our review is limited to determining whether the Secretary has exceeded his statutory authority and whether the regulation is arbitrary and capricious. 15 Although Congress has approved of some deeming of income between Medicaid applicants and their spouses, Schweiker v. Gray Panthers, supra, at 48, 101 S.Ct., at 2642, we cannot agree with respondents that Congress intended the States to enforce their spousal responsibility policies wholly unimpeded by the Secretary's congressionally authorized power to give substance to the term "available." In placing time limitations upon the States' ability to consider the spouse's income where the Medicaid applicant and his spouse no longer live together, the Secretary has done nothing more than define what income is "available." Although Congress intended that a spouse's income could be part of the income which the Secretary may determine should be considered by the States as available to the Medicaid applicant, Schweiker v. Gray Panthers, supra, at 45, 101 S.Ct., at 2641, we see nothing in subsection (17)(D) that precludes the Secretary from imposing upon the States the time limits at issue in the instant case. We find nothing in subsection (17)(D) either that disables the Secretary from defining the term "available" in such circumstances, or that gives the States authority to "deem" income unimpeded by the Secretary's authority under subsection (17)(B).13 Subsection (17)(D) cannot be read to require the Secretary to permit the States to consider the income of a spouse no longer living with the applicant as available to the applicant for an unlimited duration. 16 Although we do not agree with the contention of the United States, and apparently that of petitioners, that the time limitations in 42 CFR § 435.723 (1980) are compelled by the relationship between the Medicaid and SSI programs, we do agree that the Secretary may acknowledge this relationship in defining "availability" of income with regard to Medicaid applicants within the optional categories. As we have explained, the optional categorically needy consists in part of those individuals who are eligible for, but are not receiving, SSI benefits and those individuals who, but for their institutionalization, would be eligible for SSI benefits. Supra, at 269. Since these groups are defined in part with regard to SSI income limitations, it is reasonable that the Secretary should determine that States electing to provide Medicaid assistance to the optional categorically needy should apply a similar method for calculating income as that employed in the SSI program. The 1-month and 6-month limitations in 42 CFR § 435.723 (1980) are virtually identical to the SSI requirements. See 42 U.S.C. §§ 1382(a)(1), 1382c(b), (f)(1). We cannot say that it is either arbitrary or capricious for the Secretary to conclude that SSI recipients and the optional categorically needy should be treated similarly with respect to the method used for calculating income in determining whether the State is entitled to receive federal financial assistance under the Medicaid program. 17 In upholding the Secretary's limitation on deeming, we do not thereby render subsection (17)(D) meaningless. That provision, however, may not be read in isolation from the other provisions of the Social Security Act. We have no doubt that some tension exists between the Secretary's congressionally authorized power under subsection (17)(B) to determine what income is "available" to the applicant and Congress' intent in subsection (17)(D) to permit the States to enforce their spousal responsibility policies.14 Because Congress in subsection (17)(B) has delegated broad authority to the Secretary to set eligibility standards for the Medicaid program, however, we cannot say that the Secretary's regulations placing time limitations on the States' ability to deem income between spouses who do not share the same household are unreasonable or contrary to law. A reviewing court may not set aside the Secretary's regulations "simply because it would have interpreted the statute in a different manner." Batterton v. Francis, supra, at 425, 97 S.Ct., at 2405. A fortiori, Iowa may not ignore federal regulations simply because it interprets § 1902(a)(17) in a manner it considers preferable to the Secretary's interpretation. 18 This would be a different case, and respondents' arguments more compelling, if the Secretary had sought to use his authority under subsection (17)(B) to foreclose entirely the States' ability to consider the income of the institutionalized applicant's spouse. Such a reading of the statute could well render subsection (17)(D) superfluous. See Schweiker v. Gray Panthers,, 453 U.S., at 45, 101 S.Ct., at 2641. The Secretary's regulations, however, impose no such across-the-board limitation on the States' ability to implement their spousal responsibility policies. The challenged regulation applies only to those SSI States that have decided to extend Medicaid benefits to the optional categorically needy, and it prohibits deeming only after the spouses have ceased to live together for prescribed periods of time. 19 On the contrary, 42 CFR § 435.723 (1980) is simply an exception to the general rule that the spouse's income may be considered available to the applicant. With regard to the optional categorically needy, SSI States are required to deemthe income and resources of spouses living in the same household. § 435.723(b). States exercising the § 209(b) option are required to deem income to the extent required in SSI States and may deem to the full extent they did before 1972. § 435.734. See Schweiker v. Gray Panthers, supra, at 40, 101 S.Ct., at 2638.15 Finally, the SSI applicant is considered to a similar extent to have available to him his spouse's income and financial resources. See n. 2, supra. 20 We conclude that the Secretary need not interpret § 1902(a)(17) to require an individualized factual determination in each instance as to the amount of income of an applicant's spouse that may reasonably be considered available to the applicant. With regard to SSI recipients in SSI States, such an interpretation would be contrary to § 1902(a)(10)(A), 42 U.S.C. § 1396a(a)(10)(A). With regard to the optional categorically needy, we find that the Secretary has not exceeded his authority in promulgating 42 CFR § 435.723 (1980), and that this regulation is neither arbitrary nor capricious. Accordingly, we reverse the judgment of the Court of Appeals for the Eighth Circuit and remand for proceedings consistent with this opinion. 21 It is so ordered. 22 Justice STEVENS, concurring in part. 23 The Court speculates that subsection 17(D) might well be superfluous if subsection 17(B) were read to permit the Secretary to foreclose entirely the States' ability to consider the income of the spouse of an institutionalized applicant. Ante, at 277. This speculation apparently is predicated on the belief that subsection 17(D) requires the States to deem certain income of an applicant's spouse to be available to the applicant.1 The Court's observation is both unnecessary and misleading.2 Subsection 17(D), like subsection 17(B), places a limit on the extent to which an applicant's income may be deemed to include contributions from other sources. Nothing in the language of either subsection requires that any spousal income be deemed to be available to an applicant. 24 Apart from the Court's speculation concerning a regulation that does not exist, I join its opinion. 25 Chief Justice BURGER, dissenting. 26 Although the Medicaid program is a morass of bureaucratic complexity, I do not believe it is nearly so difficult to apply the Social Security Act in this case as the Court makes it seem. Iowa is an "SSI State." This means that, under § 1902(a)(10)(A) of the Act, 42 U.S.C. § 1396a(a)(10)(A), it must develop a plan "for making medical assistance available to all individuals receiving . . . supplemental security income benefits . . . ." As part of the plan Iowa developed, a non-institutionalized spouse must contribute toward the care of an institutionalized spouse. This is explicitly authorized by § 1902(a)(17)(D), 42 U.S.C. § 1396a(a)(17)(D), which prohibits a state from reducing the amount of Medicaid assistance to be made available to a recipient because of the financial responsibility of another person, unless the other person is the recipient's spouse or parent. See ante, at 267-268, n.1. What could be more clear in words and purpose? Any doubt vanishes when we look at what Congress spelled out in the legislative history: "The committee believes it is proper to expect spouses to support each other . . . ." S.Rep.No.404, 89th Cong., 1st Sess., 78 (1965), U.S.Code Cong., & Admin.News 1965, p. 1943.1 In short, I conclude that Iowa's "deeming" procedure is authorized by subsection 17(D). 27 The Court apparently believes that Iowa overemphasizes the importance of subsection (17)(D). See ante, at 1066. It bases its conclusion on subsection (17)(B), which delegates to the Secretary of Health and Human Services the task of determining what income is "available" to an institutionalized spouse. The applicable regulation promulgated by the Secretary goes 180 degrees contrary to the expressed will of Congress and prohibits states from taking the income of a noninstitutionalized spouse into account after the month in which the SSI recipient is institutionalized. 42 CFR § 435.723(d) (1980); see ante, at 269-270, n.4. In Schweiker v. Gray Panthers, 453 U.S. 34, 101 S.Ct. 2633, 69 L.Ed.2d 460 (1981), and Batterton v. Francis, 432 U.S. 416, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1977), we held that the Secretary's definition of "available" is entitled to great weight. I do not believe, however, that the Secretary may by regulation practically rewrite a portion of the statute. The statute is entitled to greater weight than the regulation, which was promulgated by the Secretary's staff, which apparently regarded the statute as too rigid.2 28 All the parties agree that Iowa may enforce its family responsibility laws despite the Secretary's regulation. See ante, at 277, n.14. This means that Iowa may sue a noninstitutionalized spouse for partial reimbursement of Medicaid payments under its laws. All Iowa may not do is "deem" a noninstitutionalized spouse's income available to support an institutionalized spouse. We compared the practicality of family responsibility laws and "deeming" in the 1980 Term, and concluded: 29 "It is not 'an answer to say that the state can take action against the spouse to recover that which the spouse was legally obligated to pay. [It is] unrealistic to think that the state will engage in a multiplicity of continuing individual lawsuits to recover the money that it should not have had to pay out in the first place. [Because States cannot practically do so, there would be] an open invitation for the spouse to decide that he or she does not wish to make the excess payment.' Brown v. Stanton, 617 F.2d 1224, 1234 (CA7 1980) (Pell, J., dissenting in part and concurring in part) . . . ." Schweiker v. Gray Panthers, supra, at 46, 101 S.Ct., at 2641. 30 There is nothing in the difference between "SSI states" and "§ 209(b) states" that makes enforcement of family responsibility laws more practical in one than in the other. 31 The effect of the Court's decision will be to reduce the amount of Medicaid assistance available to those most in need. As we noted in Gray Panthers, some spouses will accept this open invitation of the "regulators" not to support an institutionalized spouse. In many cases, noncontributing spouses will get away with not contributing because the states will decide that it is not worth the effort to attempt to enforce their state laws. In other cases, funds that could go to those most in need will be diverted to pay the salaries of the lawyers and others needed to enforce the family responsibility laws. In both cases, a diversion of funds from those most in need will occur. 32 The Court's approach also undermines the states' role as partners in this cooperative federal-state program. By deciding to become an "SSI state" rather than a "§ 209(b) state," Iowa has chosen to allocate its resources to cover a greater number of people. By deciding to "deem" a portion of a noninstitutionalized spouse's income available to an institutionalized spouse, Iowa can reduce the cost of the additional coverage. In enacting subsection 17(D), Congress determined that the responsibility of a noninstitutionalized spouse for an institutionalized spouse is a matter best left to the judgment of the states. Yet the Court today moves the determination of spousal responsibility from the states to a federal agency. 33 In sum, the Court gets lost in the Medicaid maze, and ends up overruling a statute by giving greater weight to a regulation prepared by an agency staff than to the law as drafted by Congress. Subsection 17(D) was enacted expressly to permit the states to choose to require that spouses support each other. The Court seems to overlook that Congress intended to leave these choices to the states, since the regulation for all practical purposes prohibits states from making their own decisions based on their own perceptions of local needs. Since the regulation conflicts with subsection 17(D), it should be held invalid. 1 Section 1902(a)(17) provides that a state plan for medical assistance must "include reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan which (A) are consistent with the objectives of this subchapter, (B) provide for taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient . . . (C) provide for reasonable evaluation of any such income or resources, and (D) do not take into account the financial responsibility of any individual for any applicant or recipient under the plan unless such applicant or recipient is such individual's spouse or such individual's child who is under age 21 or (with respect to States eligible to participate in the State program established under subchapter XVI of this chapter), is blind or permanently and totally disabled, or is blind or disabled as defined in section 1382c of this title (with respect to States which are not eligible to participate in such program); and provide for flexibility in the application of such standards with respect to income by taking into account, except to the extent prescribed by the Secretary, the costs (whether in the form of insurance premiums or otherwise) incurred for medical care or for any other type of remedial care recognized under State law." 42 U.S.C. § 1396a(a)(17). 2 The SSI program, in turn, has its own eligibility requirements, which include "deeming" provisions. See 42 U.S.C. §§ 1382, 1382c(b), (f)(1). 3 The States, if they choose to do so, may extend Medicaid coverage to the "medically needy." 42 U.S.C. § 1396a(a)(10)(C); 42 CFR §§ 435.300-435.325; 435.800-435.845 (1980). Since Iowa does not extend Medicaid assistance to the medically needy, the Secretary's deeming regulations applicable to this optional program are not at issue in this case. See 42 CFR § 435.822 (1980). 4 Title 42 CFR § 435.723 (1980) provides: "(a) If the agency provides Medicaid to SSI recipients, it must meet the requirements of this section in determining eligibility of aged, blind, and disabled individuals under the optional coverage provisions of §§ 435.210, 435.211, and 435.231. "(b) The agency must consider income and resources of spouses living in the same household as available to each other, whether or not they are actually contributed. "(c) If both spouses apply or are eligible as aged, blind, or disabled and cease to live together, the agency must consider their income and resources as available to each other for the first 6 months after the month they cease to live together. After this 6-month period, the agency must consider only the income and resources that are actually contributed by one spouse to the other. "(d) If only one spouse in a couple applies or is eligible and they cease to live together, the agency must consider only the income and resources of the ineligible spouse that are actually contributed to the eligible spouse after the month in which they cease to live together." 5 Elvina, therefore, is considered part of the optional categorically needy. 42 CFR § 435.210 (1980). 6 Petitioners' challenge was based both on statutory and constitutional grounds. Petitioners contended that Iowa's procedures were in conflict with § 1902(a)(17) of the Social Security Act and with the Secretary's regulations, now codified at 42 CFR § 435.723 (1980). Petitioners also contended that Iowa's procedures violated the Equal Protection Clause and the Due Process Clause. Petitioners' constitutional claims were not considered either by the District Court or by the Court of Appeals and are not before this Court. 7 The District Court certified a class consisting of "all married couples residing in Iowa of which: (1) one spouse is eligible for Medicaid and requires institutionalization; and (2) the other spouse is not institutionalized; and (3) the non-institutionalized spouse has income which is, under current state procedures, being deemed available to the institutionalized spouse." 443 F.Supp. 1315, 1320 (1978). 8 45 CFR § 248.3 (1976). 9 Section 1902(a)(10)(A) requires a state Medicaid plan to provide "for making medical assistance available to all individuals receiving aid or assistance under any plan of the State approved under subchapter I, X, XIV, or XVI, or part A of subchapter IV of this chapter, or with respect to whom supplemental security income benefits are being paid under subchapter XVI of this chapter. . . ." 42 U.S.C. § 1396a(a)(10)(A) (emphasis added). 10 Although we do not believe that § 1902(a)(10)(A) can be characterized as ambiguous in this regard, the legislative history of the original Medicaid statute is rather explicit in requiring the participating States to provide medical assistance to recipients under the four categorical welfare programs then in existence. "[A] State plan to be approved must include provision for medical assistance for all individuals receiving aid or assistance under State plans approved under titles I, IV, X, XIV, and XVI. It is only if this group is provided for that States may include medical assistance to the less needy." S.Rep.No.404, 89th Cong., 1st Sess., 77 (1965), U.S.Code Cong. & Admin.News 1965, p. 1943. Titles I, X, and XVI were respectively Old Age Assistance, Aid to the Blind, and Aid to the Permanently and Totally Disabled, the three categorical welfare programs replaced by SSI. See Schweiker v. Gray Panthers, 453 U.S. 34, 37-38, and nn. 1, 3, 101 S.Ct. 2633, 2636-2637, and nn. 1, 3, 69 L.Ed.2d 460 (1981). We find nothing in the adoption of the SSI program that would alter the meaning of § 1902(a)(10)(A). 11 Section 1902(a)(17)(D) provides that the States' standards for determining eligibility for, and the extent of, Medicaid assistance may "not take into account the financial responsibility of any individual for any applicant or recipient under the plan unless such applicant or recipient is such individual's spouse or such individual's child. . . ." 42 U.S.C. § 1396a(a)(17)(D). 12 Respondents rely in particular on a portion of the 1965 Senate Report we quoted in Gray Panthers : "The committee believes it is proper to expect spouses to support each other and parents to be held accountable for the support of their minor children and their blind or permanently and totally disabled children." S.Rep.No.404, 89th Cong., 1st Sess., 78, U.S.Code Cong. & Admin.News 1965, p. 1943. 13 Contrary to the dissent, we do not interpret subsection (17)(D) as "authorizing" the States to deem, without any limitation, income between spouses. That subsection simply prohibits the States from considering the financial responsibility of any individual for the Medicaid applicant unless that individual is the applicant's spouse or parent. See nn. 1, 11, supra. 14 As conceded by petitioners at oral argument, Tr. of Oral Arg. 9, Iowa is free to obtain reimbursement from the noninstitutionalized spouse in a lawsuit brought under its family responsibility laws. We recognize that such lawsuits may not be a uniformly practical alternative. See Schweiker v. Gray Panthers, 453 U.S., at 46, 101 S.Ct., at 2641. 15 To a certain extent, therefore, the barriers Iowa faces in implementing its spousal responsibility policies are attributable to the choices it has made with regard to the Medicaid options available. Iowa has decided to become an SSI State rather than a § 209(b) State. The Secretary permits SSI States to opt for " '§ 209(b) status' at any time." Schweiker v. Gray Panthers, supra, at 39, n. 6, 101 S.Ct., at 2638, n. 6. In addition, Iowa is subject to 42 CFR § 435.723 (1980) only because it has decided to extend Medicaid assistance to the optional categorical needy. § 435.700. 1 In Schweiker v. Gray Panthers, 453 U.S. 34, 45, 101 S.Ct. 2633, 2641, 69 L.Ed.2d 460, the Court noted that subsection 17(D) might be superfluous if the statute were not read to permit certain deeming, see also 453 U.S., at 52, 101 S.Ct., at 2644 (STEVENS, J., dissenting); the Court did not suggest that any amount of deeming was required by the statute. 2 As THE CHIEF JUSTICE notes in his dissenting opinion, it also is more consistent with his analysis of the case than with the Court's. See post, at 280-281, n. 2. 1 As applied to the tragic facts of this case, Iowa's plan required Mr. Herweg to contribute $234.80 each month toward the care of his wife in 1976. His gross monthly income was $1,350 at that time, and her monthly medical expenses were approximately $1,374. 2 The Court admits that this would be a different case if the Secretary issued a regulation totally foreclosing states from "deeming" a noninstitutionalized spouse's income available to an institutionalized spouse. Such a regulation would "render subsection 17(D) superfluous." Ante, at 277. Yet the Court approves the prohibition of "deeming" after a prescribed period of institutionalization, in this case a period of one month. Moreover, although the Secretary interprets his regulation to prohibit "deeming" after one month of institutionalization, as written it appears to prohibit "deeming" even sooner. The regulation prohibits "deeming" "after the month in which" a spouse is institutionalized. See ante, at 270, n.4. Thus, a literal interpretation of the regulation would prohibit "deeming" on February 1 in the case of a spouse institutionalized on January 31.

12

71 L.Ed.2d 170 102 S.Ct. 1082 455 U.S. 305 George F. JEWETT, Jr., et ux., Petitionersv.COMMISSIONER OF INTERNAL REVENUE. No. 80-1614. Argued Dec. 1, 1981. Decided Feb. 23, 1982. Syllabus Held: The "transfer" referred to in the Treasury Regulation excepting from the federal gift tax a refusal to accept ownership of an interest in property transferred by will if such refusal is effective under local law and made "within a reasonable time after knowledge of the existence of the transfer," occurs, as indicated by both the text and history of the Regulation, when the interest is created and not at a later time when the interest either vests or becomes possessory. Hence, in this case where disclaimers of a contingent interest in a testamentary trust, though effective under local law, were not made until 33 years, and thus not "within a reasonable time," after the interest was created, the disclaimers were subject to a gift tax under §§ 2501(a)(1) and 2511(a) of the Internal Revenue Code, as indirect gifts to a successor in interest. Pp. 309-319. 638 F.2d 93, affirmed. James D. St. Clair, Wellesley Hills, Mass., for petitioners. Stuart A. Smith, Washington, D. C., for respondent. Justice STEVENS delivered the opinion of the Court. 1 A trust beneficiary's refusal to accept ownership of property may constitute an indirect gift to a successor in interest subject to federal gift tax liability. 26 U.S.C. §§ 2501, 2511. Under Treasury Regulation § 25.2511-1(c), however, such a refusal is not subject to tax if it is effective under local law and made "within a reasonable time after knowledge of the existence of the transfer." The petitioner husband (hereafter petitioner) in this case executed disclaimers of a contingent interest in a testamentary trust 33 years after that interest was created, but while it was still contingent. The narrow question presented is whether the "transfer" referred to in the Regulation occurs when the interest is created, as the Government contends, or at a later time when the interest either vests or becomes possessory, as argued by petitioner. 2 Petitioner's grandmother, Margaret Weyerhaeuser Jewett, died in 1939 leaving the bulk of her substantial estate in a testamentary trust. Her will, executed in Massachusetts, provided that the trust income should be paid to petitioner's grandfather during his life, and thereafter to petitioner's parents. Upon the death of the surviving parent, the principal was to be divided "into equal shares or trusts so that there shall be one share for each child of my said son [petitioner's father] then living and one share for the issue then living representing each child of my said son then dead." App. 9. Petitioner's mother is the sole surviving life tenant. Thus, under the testamentary plan, if petitioner survived his mother, he would receive one share of the corpus of the trust; if he predeceased his mother, that share would be distributed to his issue. Since petitioner's parents had two children, his share of the trust amounted to one-half of the principal. 3 In 1972, when petitioner was 45 years old, he executed two disclaimers. The disclaimers each recognized that petitioner had "an interest in fifty percent (50%) of the trust estate . . . provided that he survives" his mother. Id., at 15. In the first disclaimer, petitioner renounced his right to receive 95% "of the aforesaid fifty percent (50%) of the remainder of the trust estate," ibid. ; in the second he renounced his right to the remaining 5%. In 1972 the value of the trust exceeded $8 million. 4 Petitioner and his wife filed gift tax returns for the third and fourth quarters of 1972 in which they advised the Commissioner of the disclaimers, but did not treat them as taxable gifts.1 The Commissioner assessed a deficiency of approximately $750,000. He concluded that the disclaimers were indirect transfers of property by gift within the meaning of §§ 2501(a)(1)2 and 2511(a)3 of the Internal Revenue Code, and that they were not excepted from tax under Treas.Reg. § 25.2511-1(c)4 because they were not made "within a reasonable time after knowledge" of his grandmother's transfer to him of an interest in the trust estate. Petitioner then filed this action in the Tax Court seeking a redetermination of the deficiency. 5 In the Tax Court and in the Court of Appeals, petitioner argued that at the time the disclaimers were made he had nothing more than a contingent interest in the trust, and that the "reasonable time" in which a tax-free disclaimer could be made did not begin to run until the interest became vested and possessory upon the death of the last surviving life tenant.5 Although a comparable argument had been accepted by the Court of Appeals for the Eighth Circuit in Keinath v. Commissioner, 480 F.2d 57 (1973),6 it was rejected by the Tax Court7 and by the Ninth Circuit8 in this case. We granted certiorari to resolve the conflict. 452 U.S. 904, 101 S.Ct. 3029, 69 L.Ed.2d 404. 6 Petitioner relies heavily on the plain language of the Treasury Regulation and on early decisions that influenced its draftsmen. Before analyzing that language and its history, it is appropriate to review the statutory provisions that the regulation interprets. 7 * Section 2501(a)(1) of the Internal Revenue Code imposes a tax "on the transfer of property by gift." Section 2511(a) provides that the tax shall apply "whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible." As the Senate9 and House10 Reports explain: 8 "The terms 'property,' 'transfer,' 'gift,' and 'indirectly' are used in the broadest and most comprehensive sense; the term 'property' reaching every species of right or interest protected by law and having an exchangeable value." 9 In Smith v. Shaughnessy, 318 U.S. 176, 180, 63 S.Ct. 545, 547, 87 L.Ed. 690, the Court noted that "[t]he language of the gift tax statute, 'property . . . real or personal, tangible or intangible,' is broad enough to include property, however conceptual or contingent." 10 Our expansive reading of the statutory language in Smith unquestionably encompasses an indirect transfer, effected by means of a disclaimer, of a contingent future interest in a trust.11 Congress enacted the gift tax as a "corollary" or "supplement" to the estate tax.12 In Estate of Sanford v. Commissioner, 308 U.S. 39, 44, 60 S.Ct. 51, 56, 84 L.Ed. 20, the Court explained that "[a]n important, if not the main, purpose of the gift tax was to prevent or compensate for avoidance of death taxes by taxing the gifts of property inter vivos which, but for the gifts, would be subject in its original or converted form to the tax laid upon transfers at death." Since the practical effect of petitioner's disclaimers was to reduce the expected size of his taxable estate and to confer a gratuitous benefit upon the natural objects of his bounty, the treatment of the disclaimers as taxable gifts is fully consistent with the basic purpose of the statutory scheme. II 11 The controlling Treasury Regulation provides that a refusal to accept ownership of property transferred from a decedent does not constitute a gift if two conditions are met. First, the refusal must be effective under the law governing the administration of the decedent's estate. Second, the refusal must be made "within a reasonable time after knowledge of the existence of the transfer." 12 There is no dispute in this case that the first requirement has been satisfied; the disclaimers were effective under Massachusetts law. The controversy arises from the second requirement; specifically, it is over the meaning of the word "transfer," which may be read to refer to the creation of petitioner's remainder interest by his grandmother's will, or to either the vesting of that interest or the distribution of tangible assets upon the death of the life tenant. Both positions find support in the language of the Regulation. 13 To a layman the word "transfer" would normally describe a change in ownership of an existing interest rather than the creation of a new interest. Moreover, the reference to a transfer of "ownership of a decedent's property" suggests that the transferee must acquire property that once had been owned by the decedent; petitioner's grandmother never owned the future interests that her will created, but she once did own the assets (or their equivalent) that the remaindermen will acquire when their interests become possessory in character. Thus, language in the Regulation implies that the relevant "transfer" had not yet occurred when petitioner renounced his interest in the trust. 14 Other language, however, indicates that the relevant "transfer" occurs at the time of the testator's death. The word "transfer" is the basic term used in the gift tax provisions to describe any passage of property without consideration that may have tax consequences. See 26 U.S.C. §§ 2501, 2511, quoted in nn. 2, 3, supra.13 The Regulation describes a transfer that "is effected by the decedent's will" (or by the law of descent and distribution of intestate property), not by a subsequent vesting event or distribution of property. The property must be transferred "from a decedent," not from an estate executor or trust administrator. The lack of any reference in the Regulation to future interests or contingent remainders, and the consistent focus on transfers effected by the decedent by will or through the laws of intestate distribution, undermine the suggestion that the relevant transfer occurs other than at the time of the testator's death. The Regulation also requires "knowledge of the existence of the transfer"; since a person to whom assets have actually been distributed would seldom, if ever, lack knowledge of the existence of such a transfer, it seems more likely that this provision was drafted to protect persons who had no knowledge of the creation of an interest. 15 On balance, we believe that the text of the Regulation supports the Commissioner's interpretation. Because that text is not entirely clear, however, it is appropriate to examine briefly the Regulation's history. III 16 Treasury Regulation § 25.2511-1(c) has not been changed since it was promulgated on November 15, 1958. The form of the Regulation, however, is somewhat different from a draft that was first proposed on January 3, 1957. That draft required a renunciation to be made "within a reasonable time after knowledge of the existence of the interest," rather than after knowledge of the existence of the "transfer."14 The word "interest" unquestionably would encompass a contingent remainder even if the word "transfer" arguably would not. Thus, if the initial draft had been adopted without change, petitioner's disclaimers certainly would be subject to tax. Petitioner contends that the drafting change must have been intended to avoid this consequence. 17 An assessment of petitioner's argument requires an examination of the reason for the change in the Regulation's language. The explanation of the change rendered by the Commissioner in 1958 indicates that it was intended to accomplish a purpose quite different from that suggested by petitioner. 18 A Memorandum from the Commissioner to the Secretary of the Treasury submitted on October 1, 1958, explained that the change in language was intended to capture "the proper distinction" between two early court decisions that the Regulation had attempted to codify.15 In both of these cases the transferee had renounced a fee interest before the administration of the decedent's estate had been completed. In the earlier case, Brown v. Routzahn, 63 F.2d 914 (CA6 1933), cert. denied, 290 U.S. 641, 54 S.Ct. 60, 78 L.Ed. 557, a husband refused to accept a bequest under his wife's will. Under Ohio law the disclaimer was effective because it preceded the distribution of his wife's estate. Since the husband had never acquired ownership of the property, his disclaimer was held not to constitute the transfer of an interest; rather, it was deemed an exercise of a right to refuse a gift of property. Accordingly, the renunciation was held not be a gift in contemplation of death for purposes of determining the husband's estate tax. In the second case, Hardenbergh v. Commissioner, 198 F.2d 63 (CA8 1952), cert. denied, 344 U.S. 836, 73 S.Ct. 45, 97 L.Ed. 650, the decedent died intestate leaving a wife, a daughter, and a son by a prior marriage. To effectuate the decedent's intent to equalize the wealth of the three, the wife and daughter relinquished their rights to their intestate shares. Under Minnesota law, however, "title to an interest in decedent's estate vested in the taxpayers by operation of law which neither had the power to prevent." 198 F.2d, at 66. Since local law denied them the power to renounce the interest, the taxpayers' disclaimers were not effective and constituted gifts subject to the federal gift tax. 19 As indicated in the Commissioner's Memorandum, Treas.Reg. § 25.2511-1(c) sought to preserve the distinction between these two cases. Originally, the Regulation tracked language in the Hardenbergh opinion and provided that a disclaimer was taxable only if title to the property had "vested" under state law. On consideration, however, the Commissioner recognized that this language did not capture "the proper distinction between these two court cases"; indeed, in Brown v. Routzahn, the property interest had fully "vested" at the time of the taxpayer's renunciation.16 Thus, to incorporate the proper distinction, the Commissioner changed the "vesting" requirement to a requirement that "the law governing the administration of the decedent's estate" must give a right to "refuse to accept ownership of property transferred from a decedent." Having eliminated the "vested property interest" language from the first part of the Regulation, the Commissioner correspondingly changed the second part to read "within a reasonable time after knowledge of the existence of the transfer," rather than "within a reasonable time after knowledge of the existence of the interest." 20 Thus, the purpose of the change in the Regulation was not to exclude contingent remainders. Neither Brown nor Hardenbergh concerned contingent interests. Since the original draft of the Regulation supports the Commissioner's position in this case, and since the change in its form was made for a reason that is unrelated to the issue presented, the Regulation's history buttresses the Commissioner's position. 21 Petitioner also contends that the history of the Regulation demonstrates that its draftsmen merely intended to codify the rules of Brown v. Routzahn and Hardenbergh v. Commissioner, and that under those cases state law controlled both the "right" to renounce and the "timeliness" of the renunciation. Although petitioner accurately interprets these two cases, his interpretation of the Regulation would render half of it superfluous. The Regulation explicitly imposes two requirements: (1) the disclaimer must be effective as a matter of local law; and (2) the disclaimer must be made within a reasonable time. If timeliness were governed solely by local law, the second requirement would be redundant. While it is possible that local law may require a disclaimer to be timely to be effective, such a requirement would not absolve the taxpayer from the separate timeliness requirement imposed by the federal Regulation. Otherwise, the Regulation would be complete with a single requirement that the disclaimer be effective under local law.17 IV 22 Petitioner's remaining arguments may be answered quickly. In the Tax Reform Act of 1976, Congress established specific standards for determining whether a disclaimer constitutes a taxable gift; those new standards would support the Commissioner's position in this case if the original transfers had occurred after the effective date of the Act.18 Petitioner argues that the legislative decision not to apply those standards retroactively is evidence that a different rule was previously effective. It is clear, however, that Congress expressed no opinion on the proper interpretation of the Regulation at issue in this case; it merely established an unambiguous rule that should apply in the future.19 23 Petitioner also argues that it is unfair to apply the 1958 Regulation "retroactively" to an interest that had been created previously; petitioner asserts that, by the time the Regulation was adopted, it was already too late—according to the Commissioner's view—to disclaim the interest.20 The argument lacks merit. It is based on an assumption that petitioner had a "right" to renounce the interest without tax consequences that was "taken away" by the 1958 Regulation. Petitioner never had such a right. Indeed, petitioner does not argue that taxation of the disclaimers is inconsistent with the statutory provisions imposing a gift tax, which were enacted long before petitioner's interest in the trust was created. The 1958 Regulation was adopted well in advance of the disclaimers in this case; we see no "retroactivity" problem. 24 Finally, petitioner argues that the disclaimer of a contingent remainder is not a taxable event by analogizing it to an exercise of a special power of appointment, which generally is not considered a taxable transfer. 26 U.S.C. § 2514. As the Commissioner notes in response, however, a disclaimant's control over property more closely resembles a general power of appointment, the exercise of which is a taxable transfer. Ibid. Unlike the holder of a special power—but like the holder of a general power—a disclaimant may decide to retain the interest himself. It is this characteristic of the control exercised by a disclaimant that makes a disclaimer a "transfer" within the scope of the gift tax provisions. V 25 The Commissioner's interpretation of the Regulation has been consistent over the years and is entitled to respect. This canon of construction, which generally applies to the Commissioner's interpretation of the Internal Revenue Code, see Commissioner v. Portland Cement Co. of Utah, 450 U.S. 156, 169, 101 S.Ct. 1037, 1045, 67 L.Ed.2d 140, is even more forceful when applied to the Commissioner's interpretation of his own Regulation. 26 Since the relevant "transfer" in this case occurred when petitioner's grandmother irrevocably transferred her assets to a testamentary trust, petitioner's disclaimers of the rights created by that trust were not made within a reasonable time. Even accepting petitioner's argument that the clock did not begin to run until he reached the age of majority, the disclaimers were made after the passage of 24 years. As the Tax Court explained: 27 "The petitioner possessed, for 24 years, the effective right to determine who should ultimately receive the benefits of a 50-percent remainder interest of a trust which, in 1972, had a corpus of approximately $8 million. He waited to act in respect of that remainder interest until the surviving life beneficiary was over 70 years of age and until he himself was 45 and, it appears, a man of substantial means. In 1972, by the execution of two disclaimers, he elected to let the property pass according to the alternative provisions of his grandmother's will—to the natural objects of his bounty. This, we hold, was an exercise of control over the disposition of property subject to the gift tax imposed by section 2501." 70 T.C. 430, 438 (1978) (footnote omitted). 28 We agree. The Commissioner's assessment of a tax was proper, both under the statute and the Regulation. 29 The judgment of the Court of Appeals is affirmed. 30 It is so ordered. 31 Justice BLACKMUN, with whom Justice REHNQUIST and Justice O'CONNOR join, dissenting. 32 I do not find this case as easy or as clear on behalf of the Government as a reading of the Court's opinion would lead one to believe. While the issue could be described as somewhat close, I conclude that the petitioners have much the better of the argument, and I would reverse the judgment of the Court of Appeals. 33 * Margaret Weyerhaeuser Jewett, grandmother of petitioner George F. Jewett, Jr., died testate on January 14, 1939. At her death she was a resident of Massachusetts. She left a will which was duly admitted to probate in that Commonwealth. 34 By her will the decedent created a trust for the benefit of her husband, James R. Jewett, during his lifetime, and thereafter for the benefit of her son, George F. Jewett, and his wife, Mary, for their respective lives. On the death of the survivor of the three life beneficiaries, the trust estate is to be distributed to the then living children of George F. Jewett and to the then living issue of any deceased child of George F. Jewett, in equal shares by right of representation. 35 Petitioner George F. Jewett, Jr., was born April 10, 1927; he thus was not yet 12 years old when his grandmother died. The testatrix' husband, James, and her son, George, died prior to 1972. Mary is still living; she was born March 7, 1901. 36 On August 30, 1972, petitioner1 executed an instrument disclaiming and renouncing the major portion of any right to receive any remainder of the trust estate upon the death of his mother. On December 14 of that year, petitioner executed a second instrument disclaiming and renouncing the remaining portion of any such right. It is undisputed that these 1972 disclaimers were valid, timely, and effective under the applicable Massachusetts law. 37 Petitioner George F. Jewett, Jr., and his wife, petitioner Lucille M. Jewett, filed federal gift tax returns for the calendar quarters ended September 30 and December 31, 1972, respectively. Those returns notified respondent Commissioner of the disclaimers but did not acknowledge them as taxable transfers for federal gift tax purposes.2 38 On audit, the Commissioner determined that the disclaimers were not "made within a reasonable time after knowledge of the existence of the transfer," within the meaning of Treas.Reg. § 25.2511-1(c), 26 CFR § 25.2511-1(c) (1981), and thus were transfers subject to federal gift tax under §§ 2501(a)(1) and 2511(a) of the Internal Revenue Code of 1954, as amended 26 U.S.C. §§ 2501(a)(1) and 2511(a). Deficiencies of approximately $750,000 were determined. 39 Petitioners sought redetermination of the deficiencies in the United States Tax Court. That court, in a reviewed decision, ruled in favor of the Commissioner. 70 T.C. 430 (1978). In so doing, the court followed its earlier ruling in Keinath v. Commissioner, 58 T.C. 352 (1972), an unreviewed decision that had been reversed, 480 F.2d 57 (1973), by a unanimous panel of the United States Court of Appeals for the Eighth Circuit five years before. In the present case, a panel of the Ninth Circuit, by a divided vote, affirmed the Tax Court. 638 F.2d 93 (1980). Because of the conflict, so created, between judgments of two Courts of Appeals, the case is here. II 40 As the Court observes, ante, at 311, the language of the Regulation provides support for the petitioners as well as for the Commissioner. The Court also acknowledges that the Regulation has language that "implies that the relevant 'transfer' had not yet occurred when petitioner renounced his interest in the trust." Ibid. The Court, however, opts for the Commissioner's opposing interpretation. I am persuaded otherwise. 41 To be sure, certain factors lend colorable support to the Commissioner's position: (a) Although petitioner was not yet 12 years old when the testatrix died, he attained the age of 21 in 1948, 24 years before he executed the disclaimers in 1972. (b) Sections 2501(a)(1) and 2511(a) of the Code are broad and sweeping and were intended to reach every "transfer of property by gift," whether in trust or otherwise, and whether direct or indirect. (c) And to accept petitioners' position could mean, as a practical matter, that one who is a beneficiary of a trust, such as this testatrix created, may stand aside for a long period before disclaiming and thus, in a sense, may make that disclaimer a part of his own estate planning when actual possessory enjoyment of the property is nearer at hand and its desirability or a need for it is better evaluated than many years before. 42 The other side of the controversy, however, is not without substantial support. The federal gift tax does not deal with abstractions. It is concerned with "the transfer of property by gift." 26 U.S.C. § 2501(a)(1). With the development of testamentary trusts—or, for that matter, of inter vivos trusts legally recognized "interests" of various kinds, possessory and anticipatory, can be created by the trustor. The beneficiary of a contingent remainder or, as the Court seems to suggest here, ante, at 308, n. 5, of "a vested remainder subject to divestiture," however, may never realize anything by way of actual enjoyment of income or corpus. The contingencies upon which enjoyment depends may never ripen. In particular, the contingent beneficiary may die while the life beneficiary still lives. 43 These possibilities, accompanied by the monetary impact of gift and death taxes led courts and legislative bodies to recognize or develop common-law disclaimer and to enact preventive statutory provisions. Indeed, the Commissioner here, in the Regulation at issue, § 25.2511-1(c), recognizes a right to refuse, free of gift tax, acceptance of "ownership of property transferred from a decedent," provided that the right to refuse is effective under local law and the refusal is "made within a reasonable time after knowledge of the existence of the transfer." It is accepted that the disclaimers in the present case were effective under Massachusetts law. I search the statute in vain, however, for any statutory mention of, or provision for, the reasonable-time requirement. One might say, therefore, that the Commissioner in his wisdom acted as a matter of grace to relieve, upon the conditions specified, what could be difficult and potentially unfair and financially disastrous tax situations. 44 Be that as it may, I regard any "transfer" here, not as one from George F. Jewett, Jr. (the necessary predicate of the Commissioner's determination), but as a transfer from the testatrix. She is the one from whom the largess flows. Petitioner, of course, was in the line of designated beneficiaries, but he stepped from that line through the acts of disclaimer, and the transfer will pass him by. 45 There are other practical considerations that have appeal for me: 1. Accepting the Commissioner's Regulation and its "reasonable time" requirement, it seems to me that that time is to be measured, not from the death of the testatrix in 1939, but from the death of the preceding life beneficiary. That life beneficiary, petitioner's mother, is still alive. Petitioner has realized no benefit from the trust and never will have any benefit if he predeceases his mother. It is the contingency event that is important and makes sense in the consideration of any disclaimer. 46 2. A disclaimer is fundamentally different from a voluntary transfer of property. A disclaimer is a refusal to accept property ab initio. Bel v. United States, 452 F.2d 683, 693 (CA5 1971), cert. denied, 406 U.S. 919, 92 S.Ct. 1770, 32 L.Ed.2d 118 (1972); see Black's Law Dictionary 417 (5th ed. 1979). The law of disclaimer is founded on the basic property-law concepts that a transfer is not complete until its acceptance by the recipient, and that no person can be forced to accept property against his will. A transferor chooses the recipients of the transferred property; a disclaimant makes no such selection, for that selection has been made by the trustor. Petitioner's disclaimers merely renounced any future right to receive corpus of the trust; they did not direct or even purport to direct the future distribution of that corpus. 47 3. Until the Ninth Circuit, by its divided vote, decided the present case, the only Court of Appeals authority on the issue was Keinath v. Commissioner, supra. For reasons best known to him, the Commissioner did not seek certiorari in that case and the decision stood unmolested by any opposing appellate court authority for over seven years. Indeed, it was expressly reaffirmed by the Eighth Circuit sitting en banc in Cottrell v. Commissioner, 628 F.2d 1127 (1980), a case decided just a few weeks before the Ninth Circuit decision.3 In the interim, a substantial period as the tax law goes, taxpayers and their advisers have properly assumed that a disclaimer, valid under state law, was valid for federal tax purposes as well as if it were timely made. Judge Harris, dissenting below, observed that "it is particularly important in matters of taxation that established precedent be followed." 638 F.2d, at 96. He went on to say that if the case were one of first impression, he "might well join with the majority" but "[n]umerous tax practitioners have undoubtedly relied on this [the Keinath ] opinion in advising as to the tax consequences of such acts as are involved in the instant case, and justifiably so." Ibid. I agree that stability in tax law is desirable. Except for the Tax Court, the pronounced law appeared to have achieved a level of stability after Keinath. 48 4. The Eighth Circuit's analysis of the legal issue, it seems to me, is sound. In Keinath the court stressed that the remainder beneficiary "at no time accepted any income or principal from the trust," 480 F.2d, at 59, and that within eight weeks of the death of the testator's widow-life beneficiary, the remainderman executed his disclaimer. It was established that the disclaimer was valid and timely under applicable state law and that as a result thereof the trust estate passed to the disclaimant's children. The court noted that "reasonable time," as that term is used in the Regulation, is not defined either in the Code or the Regulation. The basic common-law requirements that the disclaimer must be made within a reasonable time and that it be effective under local law "are but a codification of common law principles applicable to the doctrine of disclaimers." Id., at 61. A central factor is the interpretation of the word "transfer" in the Regulation. The remainderman "had really nothing to accept or renounce by way of beneficial ownership or control of the property until he succeeded in outliving the life beneficiary." Id., at 64. The court then held that, under the prevailing common law, the holder of a vested remainder interest subjected to divestiture has a reasonable time within which to disclaim after the death of the life beneficiary. Ibid. It distinguished Fuller v. Commissioner, 37 T.C. 147 (1961), upon which the Tax Court had relied, and did so on the factual grounds mentioned below. 49 In Cottrell, the Eighth Circuit, sitting en banc, adhered to its Keinath analysis. It felt the case was "indistinguishable in any material respect from Keinath. " 628 F.2d, at 1128. It was undisputed that the disclaimer in question was valid under state law, that it was unequivocal, and that the taxpayer accepted no property before she disclaimed. As in Keinath, if the "reasonable time" period began with the death of the testator, the disclaimer was untimely, but if the critical event was the death of the life beneficiary, the disclaimer "was unquestionably timely, having been executed 16 days, and filed two months, thereafter." 628 F.2d, at 1129. There is nothing unfair or improper in allowing the remainderman to wait until the life beneficiary's death and then decide whether to accept the bequest. 50 What the Eighth Circuit said by way of analysis, and held, in Keinath and Cottrell, when applied to the facts before us, is persuasive and should control here. The Ninth Circuit majority, without any particular analysis, merely disagreed with the Keinath and Cottrell reasoning and held, in a conclusory statement, that the " 'transfer' as used in the regulation means the transfer to the disclaimant of the property interest disclaimed by him," and that the transfer in question took place in 1939 when Mrs. Jewett died and petitioner received a contingent remainder from her estate. 638 F.2d, at 96. 51 5. The Court notes, ante, at 316, that by the Tax Reform Act of 1976, Pub.L. 94-455, § 2009(b)(1), 26 U.S.C. § 2518, Congress now has imposed a uniform tax treatment of disclaimers, independent of state law. Section 2518, as so added to the Code, however, was specifically made prospective only, that is, it was made applicable only to transfers creating an interest after 1976. Pub.L. 94-455, § 2009(e)(2), 90 Stat. 1896. It thus has no application to the present case. 52 The Court declares, ante, at 317: "Congress expressed no opinion on the proper interpretation of the Regulation at issue in this case," but merely established an unambiguous rule for the future. That conclusion is not at all clear to me. Congress was aware of the Keinath decision. See H.R.Rep.No.94-1380, p. 66, and n.4 (1976). The House Committee on Ways and Means observed: 53 "The amendments apply with respect to transfers creating an interest in the person disclaiming made after December 31, 1976. In the case of transfers made before January 1, 1977, the rules relating to transfers under present law, including the period within which a disclaimer must be made, are to continue to apply to disclaimers made after December 31, 1976." Id., at 67-68, U.S.Code Cong. & Admin.News at 3421-22. 54 For me, this is an acknowledgment that the Keinath ruling represented what the law was prior to 1977, and what it still is for trust instruments effective before that calendar year. I cannot join the Court's flat statement that "Congress expressed no opinion" on the existing law. 55 6. To be sure, the Tax Court has persisted in its contrary rulings. Those rulings, I feel, rest on an insecure base. The original case, from which all the other Tax Court decisions have flowed, was Fuller v. Commissioner, 37 T.C. 147 (1961), a reviewed case. In Fuller, the life beneficiary of five-eighths of the income of her husband's testamentary trust received that income for many years before she renounced a portion of her five-eighths share. Thus, she realized actual enjoyment for a long period before she disclaimed. This, for me, is a vital fact that distinguishes the case from Keinath, Cottrell, and Jewett, where each disclaimant enjoyed no benefit whatsoever. Mrs. Fuller had accepted her gift before renouncing it. 56 The next Tax Court case was Keinath v. Commissioner, 58 T.C. 352 (1972). The judge who decided Keinath relied on Fuller as controlling precedent. He acknowledged Mrs. Fuller's receipt of income from the trust "for over 25 years," conceded that the Fuller facts "are admittedly different," but nevertheless ruled that "this distinction is immaterial." 58 T.C., at 358. He did not read Fuller "as resting upon Mrs. Fuller's acceptance of income from the trust but upon her acceptance of her interest in the trust." 58 T.C., at 358. 57 The next pertinent Tax Court decision was that in the present case.4 70 T.C. 430 (1978). There the court, in a reviewed decision, referred to, and relied upon, its own decision in Keinath which had been reversed by the Eighth Circuit. "We think that our decision in Keinath was correct and that it controls the decision in this case." 70 T.C., at 435. 58 The last Tax Court cases are Estate of Halbach v. Commissioner, 71 T.C. 141 (1978), and Cottrell v. Commissioner, 72 T.C. 489 (1979). The former was a federal estate tax case centering on 26 U.S.C. § 2035 (disclaimer within three years of death). The latter, concerning a sister of the Halbach decedent, related to federal gift tax. Neither was a reviewed decision. The judge in Cottrell, recognizing that that case was appealable only to the Eighth Circuit, avoided the Court of Appeals decision in Keinath by distinguishing it on grounds later found unacceptable by the Eighth Circuit majority when the Tax Court decision was reversed. 59 Such is the saga of the issue in the United States Tax Court. The cases build on one another, but the origin and base is Fuller. That original case, in my view, is clearly distinguishable on its facts and thus, indeed, is "a frail reed on which to lean." 60 7. The Court's and the Commissioner's position also seems to me to embrace a distinct element of unfairness. The Commissioner stresses repeatedly the number of years that elapsed between the death of the testatrix and the execution of the disclaimers. This same element has been stressed in others of these cases. But to require the disclaimer long before the interest could ripen into enjoyment means that the decision must be made at a time when the disclaimant does not know what he is disclaiming or whether he ever would receive and enjoy any interest. This concern is compatible with the wording of the applicable Regulation which speaks of "knowledge of the existence of the transfer." The Eighth Circuit recognized this element of unfairness in Cottrell. 628 F.2d, at 1131. 61 For all these reasons, I would reverse the judgment of the Court of Appeals. I therefore respectfully dissent. 1 Petitioner's wife, Lucille M. Jewett, elected to consent to treat the gifts made by her husband as having been made by both husband and wife to the extent allowed by law. App. to Pet. for Cert. A-20. 2 "A tax, computed as provided in section 2502, is hereby imposed for each calendar quarter on the transfer of property by gift during such calendar quarter by any individual resident or nonresident." 26 U.S.C. § 2501(a)(1). 3 "Subject to the limitations contained in this chapter, the tax imposed by section 2501 shall apply whether the transfer is in trust or otherwise, whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible; but in the case of a nonresident not a citizen of the United States, shall apply to a transfer only if the property is situated within the United States." 26 U.S.C. § 2511(a). 4 "The gift tax also applies to gifts indirectly made. Thus, all transactions whereby property or property rights or interests are gratuitously passed or conferred upon another, regardless of the means or devise employed, constitute gifts subject to tax. See further § 25.2512-8. Where the law governing the administration of the decedent's estate gives a beneficiary, heir, or next-of-kin a right to completely and unqualifiedly refuse to accept ownership of property transferred from a decedent (whether the transfer is effected by the decedent's will or by the law of descent and distribution of intestate property), a refusal to accept ownership does not constitute the making of a gift if the refusal is made within a reasonable time after knowledge of the existence of the transfer. The refusal must be unequivocable [sic ] and effective under the local law. There can be no refusal of ownership of property after its acceptance. Where the local law does not permit such a refusal, any disposition by the beneficiary, heir, or next-of-kin whereby ownership is transferred gratuitously to another constitutes the making of a gift by the beneficiary, heir, or next-of-kin. In any case where a refusal is purported to relate to only a part of the property, the determination of whether or not there has been a complete and unqualified refusal to accept ownership will depend on all of the facts and circumstances in each particular case, taking into account the recognition and effectiveness of such a purported refusal under the local law. In the absence of facts to the contrary, if a person fails to refuse to accept a transfer to him of ownership of a decedent's property within a reasonable time after learning of the existence of the transfer, he will be presumed to have accepted the property. In illustration, if Blackacre was devised to A under the decedent's will (which also provided that all lapsed legacies and devises shall go to B, the residuary beneficiary), and under local law A could refuse to accept ownership in which case title would be considered as never having passed to A, A's refusal to accept Blackacre within a reasonable time of learning of the devise will not constitute the making of a gift by A to B. However, if a decedent who owned Greenacre died intestate with C and D as his only heirs, and under local law the heir of an intestate cannot, by refusal to accept, prevent himself from becoming an owner of intestate property, any gratuitous disposition by C (by whatever term it is known) whereby he gives up his ownership of a portion of Greenacre and D acquires the whole thereof constitutes the making of a gift by C to D." Treas.Reg. § 25.2511-1(c), 26 CFR § 25.2511-1(c) (1981). 5 As did the Tax Court, we assume that petitioner's interest in the trust is properly characterized as a contingent remainder. Although that interest is arguably a vested remainder subject to divestiture, the distinction is not one of substance for our purposes here. Cf. Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604. 6 In Keinath, the court applied "the prevailing common law rule" and held that the holder of a vested remainder interest subject to divestiture has a reasonable time after the death of the life beneficiary within which to renounce or disclaim the remainder without tax consequences. 480 F.2d at 64. The court emphasized that the holder of the remainder interest did not obtain a right to beneficial ownership and control of the property until the death of the life beneficiary. Ibid. 7 70 T.C. 430 (1978). 8 638 F.2d 93 (1980). 9 S.Rep.No.665, 72d Cong., 1st Sess., 39 (1932). 10 H.R.Rep.No.708, 72d Cong., 1st Sess., 27 (1932). 11 The actual value of the interest will be affected by the fact that it is not indefeasibly vested. As the Tax Court noted in this case: "The value of petitioner's remainder interest was not, of course, equal to 50 percent of the value of the trust corpus. Rather, it depended upon actuarial factors reflecting the various contingencies." 70 T.C., at 435, n.3. 12 The Committee Reports state that the gift tax was designed "to impose a tax which measurably approaches the estate tax which would have been payable on the donor's death had the gifts not been made and the property given had constituted his estate at his death. The tax will reach gifts not reached, for one reason or another, by the estate tax." H.R.Rep.No.708, supra, at 28; S.Rep.No.665, supra, at 40. 13 Petitioner does not contend that the creation of an irrevocable trust for the benefit of alternative contingent remaindermen is not a "transfer" when made; if the creation of such a trust is a "transfer" of property within the meaning of the statute, a "transfer" occurred in this case at Margaret Weyerhaeuser Jewett's death. In short, the use of the word "transfer" in Treas.Reg. § 25.2511-1(c) is not indicative of special meaning. To the contrary, Congress has specifically indicated that the term "transfer," at least as used in the statutory provisions defining the gift tax, is used "in the broadest and most comprehensive sense." See supra, at 309, and nn.9, 10. It is not surprising that the draftsmen of the regulation would choose the general term utilized by Congress to describe any passage of property with possible tax consequences. 14 The January 3, 1957, draft of the Regulation provided, in part: "The renunciation of a vested property interest, such as the interest of an heir or next-of-kin, or devisee in whom title immediately vests upon a decedent's death under local law, constitutes a gift to those persons who receive the property interest by means of the renunciation. On the other hand the renunciation of a gift, bequest, or inheritance, if under local law title does not immediately vest, is not a gift if the renunciation is complete, and is made within a reasonable time after knowledge of the existence of the interest." 22 Fed.Reg. 58 (1957). 15 The Memorandum is published in Tax Notes, July 27, 1981, p. 204. In pertinent part, the Memorandum explains: "In what was intended to be the application of the rules in Brown v. Routzahn (1933) 63 F.2d 914, cert. denied 290 U.S. 641 [54 S.Ct. 60, 78 L.Ed. 557], and Hardenbergh v. Commissioner (1952) 198 F.2d 63, cert. denied 344 U.S. 836 [73 S.Ct. 45, 97 L.Ed. 650], it was stated that where title to the property did not vest in the beneficiary or heir immediately upon the decedent's death, the renunciation of the property did not constitute the making of a gift, but that where title vested in the beneficiary or heir immediately upon the decedent's death, the act of the beneficiary or heir in giving up what passed to him from the decedent constituted the making of a gift. . . . Protests on these provisions were received. After reviewing these protests, we have reconsidered our position and now believe that the proper distinction between these two court cases turns on the question of whether under the applicable State law a beneficiary or heir can or cannot refuse to accept ownership of the property which passed from the decedent. Accordingly, we have revised paragraph (c) of section 25.2511-1 to reflect this change of position." 16 As the court stated in that case: "The [taxpayer] was in possession of the estate from 1912 until it was transferred to the trustees in 1920. It was not, however, in his possession as donee, but as a coexecutor. Nevertheless, at any time within that period he could have taken the one-third or made a renunciation that would have estopped him from claiming it. He did neither. It may be conceded, too, we think, that, had he died at any time between 1912 and the date of the distribution, this property would have passed under a general devise in his will, or, leaving no will, would have passed under the laws of descent and distribution as a part of his estate." 63 F.2d, at 916. 17 It is possible that the federal timeliness requirement was added in response to the particular facts presented by Brown v. Routzahn, in which the taxpayer waited eight years to renounce the interest and did so when he was 72 years old. Although the renunciation was timely as a matter of Ohio law, the Treasury Department may well have thought that such delay was unacceptable for federal tax purposes. In practical effect, the 8-year delay made it likely that the renunciation decision was part of the taxpayer's personal estate planning. As explained by the Tax Court in this case: "While a State court might be willing to accept a renunciation of a nonpossessory and not indefeasibly vested property interest after the passage of considerable time, so long as the interests of third parties have not been harmed, the passage of time is crucial to the scheme of the gift tax. With time, the potential recipient can wait to see if he himself needs the property, or whether he had better let it pass directly to the next generation." 70 T.C., at 437. 18 See Tax Reform Act of 1976, Pub.L. 94-455, 90 Stat. 1893, § 2009(b), 26 U.S.C. § 2518(b). 19 After noting the decision in Keinath v. Commissioner, 480 F.2d 57 (CA8 1973), and the "reasonable" time requirement of the Regulation, the House Report states that Congress "believe[d] that definitive rules concerning disclaimers should be provided for estate and gift tax purposes to achieve uniform treatment. In addition, [Congress] believe[d] that a uniform standard should be provided for determining the time within which a disclaimer must be made." H.R.Rep.No.94-1380, pp. 66-67 (1976), U.S.Code Cong. & Admin.News pp. 2897, 3420-21. Nothing in the legislative history expresses an opinion on the proper interpretation of the previously controlling Regulation. Nor is such an opinion indicated by the mere enactment of the law; Congress may seek to clarify the future without affecting the past. Cf. Knetsch v. United States, 364 U.S. 361, 367-370, 81 S.Ct. 132, 135-137, 5 L.Ed.2d 128. 20 Petitioner's argument would have more appeal had he attempted to renounce the interest immediately after the adoption of the 1958 Regulation, rather than some 14 years later. 1 For convenience, any reference made herein to "petitioner" in the singular, refers to George F. Jewett, Jr., alone. 2 Petitioners, as they were entitled to do under § 2513 of the Internal Revenue Code of 1954, 26 U.S.C. § 2513, elected to treat any gift made by either as made equally by both. 3 In Cottrell, three judges dissented because they felt that, in contrast with the factual situation in Keinath, the Cottrell taxpayer had "extensive" and "ultimate" control through a general testamentary power of appointment. They would modify the Keinath approach "where the remainderman essentially controls the events which would cause divestiture of the interest." They agreed, however, with the "general rule as applied to the facts of Keinath," where an interest is "less than an indefeasibly vested remainder." 628 F.2d, at 1132-1133. It is of interest to note that the court in Cottrell observed: "The Commissioner has not asked us to overrule Keinath, and we are not inclined to do so on our own motion." Id., at 1131. 4 See, however, Estate of Rolin v. Commissioner, 68 T.C. 919, 927 (1977), aff'd, 588 F.2d 368 (CA2 1978).

1112

455 U.S. 329 102 S.Ct. 1496 71 L.Ed.2d 187 CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWAREv.Raymond KASSEL et al No. 79-1618 Supreme Court of the United States February 23, 1982 On writ of certiorari to the United States Court of Appeals for the Eighth Circuit. PER CURIAM. 1 The writ of certiorari is dismissed as improvidently granted. 2 Justice WHITE, dissenting. 3 We granted certiorari in this case to decide one very narrow question: "May a court, without articulating its rationale, summarily deny an application for attorneys' fees under 42 U.S.C. § 1988?" Petitioner concedes that "not . . . all cases require opinions," Brief for Petitioner 6, n. 6, but argues that with respect to an application for fees under § 1988 "[t]he combination of discretion and a standard for the exercise of that discretion necessitates a statement of reasons to determine whether the decision is proper." Id., at 12. In my view, such an application is not sufficiently distinguishable from numerous other motions and applications that a court may concededly decide without opinion. Whether this is a good or bad method of exercising discretion in a particular case, or even in general, is not at issue in this case. Because I do not believe that there is any per se rule that a court may never summarily deny an application for fees, I would affirm the decision below. 4 Justice O'CONNOR took no part in the consideration or decision of this case. 5 Accordingly, I dissent from the majority's disposition of this case.

89

455 U.S. 283 102 S.Ct. 1070 71 L.Ed.2d 152 CITY OF MESQUITE, Appellant,v.ALADDIN'S CASTLE, INC. No. 80-1577. Argued Nov. 10, 1981. Decided Feb. 23, 1982. Judgment Recall Denied Oct. 31, 1983. See 104 S.Ct. 329. Syllabus Section 6 of appellant Texas city's licensing ordinance governing coin-operated amusement establishments directs the Chief of Police to consider whether a license applicant has any "connections with criminal elements." After receiving recommendations from the Chief of Police, the Chief Building Inspector, and the City Planner, the City Manager decides whether to grant a license. If he denies the license, the applicant may appeal to the City Council. If the City Manager denied the application because of the Chief of Police's adverse recommendation as to the applicant's character, the applicant must show to the City Council that he or it is of good character. Section 5 of the ordinance prohibits a licensee from allowing children under 17 years of age to operate amusement devices unless accompanied by a parent or legal guardian. After appellant had been ordered in Texas state-court proceedings to issue appellee amusement center operator a license (its license application having been initially denied under the predecessor to § 6), and after appellant had repealed appellee's exemption from the predecessor to § 5, appellee brought suit in Federal District Court, praying for an injunction against enforcement of the ordinance. The District Court held that § 6 was unconstitutionally vague, but upheld § 5. The Court of Appeals affirmed as to § 6, basing its holding solely on the Due Process Clause of the Fourteenth Amendment, but reversed as to § 5, basing its holding on the Texas Constitution as well as on the Fourteenth Amendment. Held : 1. The fact that the phrase "connections with criminal elements" was eliminated from the ordinance while the case was pending in the Court of Appeals does not render the case moot. A defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Here, appellant's repeal of the objectionable language would not preclude it from reenacting the same provision if the District Court's judgment were vacated. Pp. 288-289. 2. The Court of Appeals erred in holding that § 6 is unconstitutionally vague. It is clear from the procedure to be followed when an application for a license is denied by the City Manager based on the Chief of Police's recommendation, that the phrase "connections with criminal elements" is not the standard for approval or disapproval of the application. Rather, the applicant's possible connection with criminal elements is merely a subject that § 6 directs the Chief of Police to investigate before he makes a recommendation to the City Manager. The Federal Constitution does not preclude a city from giving vague or ambiguous directions to officials who are authorized to make investigations and recommendations. Pp. 289-291. 3. Because Congress has limited this Court's jurisdiction to review questions of state law and because there is ambiguity in the Court of Appeals' holding as to § 5, a remand for clarification of that holding is necessary. This Court will not decide the federal constitutional question connected with § 5, where (a) the relevant language of the Texas constitutional provisions is different from, and arguably significantly broader than, the language of the corresponding federal provisions; (b) it is unclear whether this Court would apply as a matter of federal law the same standard applied as a matter of state law by the Court of Appeals in reviewing § 5; and (c) it is this Court's policy to avoid unnecessary adjudication of federal constitutional questions, there being no need for decision of the federal issue here if Texas law provides independent support for the Court of Appeals' judgment. Pp. 291-295. 630 F.2d 1029, reversed in part and remanded. Elland Archer, Mesquite, Tex., for appellant. Philip W. Tone, Chicago, Ill., for appellee. Justice STEVENS delivered the opinion of the Court. 1 The United States Court of Appeals for the Fifth Circuit declared unconstitutional two sections of a licensing ordinance governing coin-operated amusement establishments in the city of Mesquite, Texas.1 Section 6 of Ordinance 1353, which directs the Chief of Police to consider whether a license applicant has any "connections with criminal elements,"2 was held to be unconstitutionally vague. Section 5, which prohibits a licensee from allowing children under 17 years of age to operate the amusement devices unless accompanied by a parent or legal guardian,3 was held to be without a rational basis. The first holding rests solely on the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Court of Appeals stated that its second holding rested on two provisions of the Texas Constitution as well as the Fourteenth Amendment to the Federal Constitution. Because Congress has limited our jurisdiction to review questions of state law, and because there is ambiguity in the Court of Appeals' second holding, we conclude that a remand for clarification of that holding is necessary. There is, however, no impediment to our review of the first holding. 2 On April 5, 1976, to accommodate the proposal of Aladdin's Castle, Inc. (Aladdin), to open an amusement center in a shopping mall, the city exempted from the prohibition against operation of amusement devices by unattended children certain amusement centers, the features of which were defined in terms of Aladdin's rules, as long as children under the age of seven were accompanied by an adult.4 Thereafter, Aladdin entered into a long-term lease and made other arrangements to open a center in the mall. In August, however, its application for a license was refused because the Chief of Police had concluded that Aladdin's parent corporation was connected with criminal elements. Aladdin then brought suit in a Texas state court and obtained an injunction requiring the city to issue it a license forthwith. The Texas court found that neither Aladdin nor its parent corporation had any connection with criminal elements and that the vagueness in the ordinance contravened both the Texas and the Federal Constitutions.5 3 On February 7, 1977, less than a month after the city had complied with the state-court injunction by issuing the license to Aladdin, the city adopted a new ordinance repealing Aladdin's exemption, thereby reinstating the 17-year age requirement, and defining the term "connections with criminal elements" in some detail.6 Aladdin then commenced this action in the United States District Court for the Northern District of Texas, praying for an injunction against enforcement of the new ordinance. After a trial, the District Court held that the language "connections with criminal elements," even as defined, was unconstitutionally vague, but the District Court upheld the age restriction in the ordinance.7 As already noted, the Court of Appeals affirmed the former holding and reversed the latter. 4 Invoking our appellate jurisdiction under 28 U.S.C. § 1254(2), the city now asks us to reverse the judgment of the Court of Appeals. After we noted probable jurisdiction, 451 U.S. 981, 101 S.Ct. 2312, 68 L.Ed.2d 838, Aladdin advised us that the ordinance reviewed by the Court of Appeals had been further amended in December 1977 by eliminating the phrase "connections with criminal elements." The age restriction, however, was retained.8 5 * A question of mootness is raised by the revision of the ordinance that became effective while the case was pending in the Court of Appeals. When that court decided that the term "connections with criminal elements" was unconstitutionally vague, that language was no longer a part of the ordinance. Arguably, if the court had been fully advised, it would have regarded the vagueness issue as moot.9 It is clear to us, however, that it was under no duty to do so. 6 It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Such abandonment is an important factor bearing on the question whether a court should exercise its power to enjoin the defendant from renewing the practice, but that is a matter relating to the exercise rather than the existence of judicial power.10 In this case the city's repeal of the objectionable language would not preclude it from reenacting precisely the same provision if the District Court's judgment were vacated.11 The city followed that course with respect to the age restriction, which was first reduced for Aladdin from 17 to 7 and then, in obvious response to the state court's judgment, the exemption was eliminated. There is no certainty that a similar course would not be pursued if its most recent amendment were effective to defeat federal jurisdiction. We therefore must confront the merits of the vagueness holding. 7 "It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (emphasis added).12 We may assume that the definition of "connections with criminal elements" in the city's ordinance is so vague that a defendant could not be convicted of the offense of having such a connection; we may even assume, without deciding, that such a standard is also too vague to support the denial of an application for a license to operate an amusement center. These assumptions are not sufficient, however, to support a holding that this ordinance is invalid. 8 After receiving recommendations from the Chief of Police, the Chief Building Inspector, and the City Planner, the City Manager decides whether to approve the application for a license; if he disapproves, he must note his reasons in writing. The applicant may appeal to the City Council. If the City Manager disapproved the application because of the Chief of Police's adverse recommendation as to the applicant's character, then the applicant must show to the City Council that "he or it is of good character as a law abiding citizen," which is defined in the ordinance to "mean substantially that standard employed by the Supreme Court of the State of Texas in the licensing of attorneys as set forth in [the Texas statutes]." § 9 of Ordinance 1353, App. to Juris. Statement 13. An applicant may further appeal to the state district court. It is clear from this summary13 that the phrase "connections with criminal elements," as used in this ordinance, is not the standard for approval or disapproval of the application. 9 The applicant's possible connection with criminal elements is merely a subject that the ordinance directs the Chief of Police to investigate before he makes a recommendation to the City Manager either to grant or to deny a pending application. The Federal Constitution does not preclude a city from giving vague or ambiguous directions to officials who are authorized to make investigations and recommendations. There would be no constitutional objection to an ordinance that merely required an administrative official to review "all relevant information" or "to make such investigation as he deems appropriate" before formulating a recommendation. The judgment of the Court of Appeals was therefore incorrect insofar as it held that the directive to the Chief of Police is unconstitutionally vague. II 10 The Court of Appeals stated that its conclusion that the age requirement in the ordinance is invalid rested on its interpretation of the Texas Constitution as well as the Federal Constitution: 11 "We hold that the seventeen year old age requirement violates both the United States and Texas constitutional guarantees of due process of law, and that the application of this age requirement to coin-operated amusement centers violates the federal and Texas constitutional guarantees of equal protection of the law." 630 F.2d 1029, 1038-1039 (1980) (footnotes omitted). 12 In the omitted footnotes the court quoted two provisions of the Texas Constitution that are similar, but by no means identical, to parts of the Federal Constitution.14 13 Because our jurisdiction of this appeal is based on 28 U.S.C. § 1254(2), we are precluded from reviewing the Court of Appeals' interpretation of the Texas Constitution. For the federal statute provides: 14 "Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: 15 * * * * * 16 "(2) By appeal by a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution, treaties or laws of the United States, but such appeal shall preclude review by writ of certiorari at the instance of such appellant, and the review on appeal shall be restricted to the Federal questions presented. . . ." 17 If the Texas Constitution provides an independent ground for the Court of Appeals' judgment, our possible disagreement with its exposition of federal law would not provide a sufficient basis for reversing its judgment. If that be so, we should simply dismiss the appeal insofar as the city seeks review of the invalidation of the age requirement. Cf. United States v. Hastings, 296 U.S. 188, 193, 56 S.Ct. 218, 220, 80 L.Ed. 148.15 18 The city contends, however, that the Court of Appeals did not place independent reliance on Texas law but merely treated the Texas constitutional protections as congruent with the corresponding federal provisions.16 Under this reading of the Court of Appeals' opinion, our correction of any federal error automatically would result in a revision of the Court of Appeals' interpretation of the Texas Constitution. Instead of providing independent support for the judgment below, the Texas law, as understood by the Court of Appeals, would be dependent on our reading of federal law. Although the city's contention derives support from the Court of Appeals' greater reliance on federal precedents than on Texas cases, we nevertheless decline, for the reasons that follow, to decide the federal constitutional question now. 19 It is first noteworthy that the language of the Texas constitutional provision is different from, and arguably significantly broader than, the language of the corresponding federal provisions. As a number of recent State Supreme Court decisions demonstrate, a state court is entirely free to read its own State's constitution more broadly than this Court reads the Federal Constitution, or to reject the mode of analysis used by this Court in favor of a different analysis of its corresponding constitutional guarantee. See generally Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977), and cases cited therein. Because learned members of the Texas Bar sit on the Court of Appeals for the Fifth Circuit, and because that court confronts questions of Texas law in the regular course of its judicial business, that court is in a better position than are we to recognize any special nuances of state law. The fact that the Court of Appeals cited only four Texas cases is an insufficient basis for concluding that it did not make an independent analysis of Texas law. 20 Second, it is important to take note of the Court of Appeals' interpretation of the Texas "requirement of legislative rationality." That interpretation seems to adopt a standard requiring that a legislative classification rests " ' "upon some ground of difference having a fair and substantial relation to the object of the legislation. . . ." ' " 630 F.2d, at 1039.17 This formulation is derived from this Court's opinion in F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989. But it is unclear whether this Court would apply the Royster Guano standard to the present case. See United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368; Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397. Therefore, it is surely not evident that the Texas standard and the federal standard are congruent. 21 Finally, and of greater importance, is this Court's policy of avoiding the unnecessary adjudication of federal constitutional questions. As we recently have noted, see Minnick v. California Dept. of Corrections, 452 U.S. 105, 101 S.Ct. 2211, 68 L.Ed.2d 706, this self-imposed limitation on the exercise of this Court's jurisdiction has an importance to the institution that transcends the significance of particular controversies. No reason for hasty decision of the constitutional question presented by this case has been advanced. If Texas law provides independent support for the Court of Appeals' judgment, there is no need for decision of the federal issue.18 On the other hand, if the city is correct in suggesting that the Court of Appeals' interpretation of state law is dependent on its federal analysis, that court can so advise us and we can then discharge our responsibilities free of concern that we may be unnecessarily reaching out to decide a novel constitutional question.19 22 The judgment of the Court of Appeals is reversed in part, and the case is remanded for further proceedings consistent with this opinion. 23 It is so ordered. 24 Justice WHITE, concurring in part and dissenting in part. 25 I concur in the Court's holding that Mesquite's ordinance directing the Chief of Police to consider whether a license applicant has any "connections with criminal elements" is not void for vagueness.* 26 Like Justice POWELL, however, I dissent from the Court's remand of the challenge to the age requirements in § 5 of the Mesquite ordinance. The sentiment to avoid unnecessary constitutional decisions is wise, but there is no reason in this case to suspect that the Fifth Circuit's standard for evaluating appellee's due process and equal protection claims under the Texas Constitution differed in any respect from federal constitutional standards. I agree with Justice POWELL that "the inclusion of three cursory state-law citations in a full discussion of federal law by a federal court is neither a reference to nor an adoption of an independent state ground." Post, at 299-300 (concurring in part and dissenting in part). 27 I refrain from joining Justice POWELL's detailed discussion in support of this position only because I would prefer not to engage in debate over the present health of "the Roys- ter Guano standard." As I understand it, and as expressed in the opinion of the Court, ante at 292 and 294, the rationale for inquiring into the presence of independent and adequate state grounds is to avoid an unnecessary "abstract opinion," United States v. Hastings, 296 U.S. 188, 193, 56 S.Ct. 218, 220, 80 L.Ed. 148 (1935), and to refrain from "unnecessary adjudication of federal constitutional questions." Ante at 294. This is the sole justification for remanding the case to the Court of Appeals. To justify that disposition, however, the Court finds it necessary to speculate as to whether a formulation of the rational-basis test initially stated in F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920), and reiterated in Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971), remains good law in light of more recent decisions. Ante, at 1077. Justice POWELL, in response, declares that "[t]his Court has never rejected either Royster Guano or Reed v. Reed." Post, at 301, n.6. 28 I fear that we have lost sight of the fact that our reason for pursuing this inquiry is to avoid rendering advisory opinions on federal constitutional law. It is ironic that in seeking to skirt a relatively narrow issue of whether the Mesquite age requirement is constitutional, an issue decided by the Court of Appeals and fully briefed, the Court has instead entered into highly abstract, totally advisory, speculation as to the continuing validity of one of our earlier statements on a matter of no small constitutional importance. If it is necessary to interpret a case twice removed and totally unrelated to the matter before us in order to justify a remand to the Court of Appeals, I would think it clear that no independent nonfederal basis for the decision is present. Delaware v. Prouse, 440 U.S. 648, 652, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660 (1979). 29 Justice POWELL, concurring in part and dissenting in part. 30 I concur in the Court's holding that Mesquite Ordinance 1353, § 6, is not void for vagueness. I dissent, however, from the Court's remand of the challenge to § 5. 31 * The jurisdictional basis for the Court's review of this case is 28 U.S.C. § 1254(2), which provides for mandatory Supreme Court review of federal appellate decisions overturning state statutes on federal constitutional grounds. Rather than exercising this jurisdiction, the Court remands the case to the Court of Appeals to clarify whether its decision is based on Texas law. In the past, the Court has not automatically required clarification when the record reveals that the lower court's decisional basis is federal law. In this case, the opinion of the Court of Appeals contains no analysis of state law independent of its clear application of federal law. In my view there is no justification for a remand. 32 The city of Mesquite, Tex., adopted an ordinance stating that owners of coin-operated pinball machines should not allow their operation by youths under the age of 17 years. In the decision below, the Court of Appeals held that this ordinance violated equal protection and due process as well as First Amendment rights of free speech and association. The court's opinion referred to the Texas Constitution's Due Process and Equal Protection Clauses,1 and quoted the relevant Texas constitutional provisions in the margin.2 The court then, at some length, applied the Fourteenth Amendment's rational-relationship test to the Mesquite ordinance, citing, quoting, and discussing a total of 18 federal cases in this analysis. In the two initial paragraphs defining the broad principles applied in that analysis, the court cited two Texas cases and quoted briefly from another. 630 F.2d 1029, 1035 (CA5 1980). 33 These Texas cases do not suggest an adequate and independent state ground for overruling the Mesquite ordinance. In the quoted case, the Texas court was describing federal, not Texas, law. Texas Woman's University v. Chayklintaste, 530 S.W.2d 927, 928 (Tex.1975) (citing Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971)). Of the two other Texas cases cited, one involves an unsuccessful challenge to a zoning ordinance, and in it the Supreme Court of Texas applied the rule that a challenger to a zoning ordinance bears a heavy burden of showing that the exercise of police power is not lawful. City of University Park v. Benners, 485 S.W.2d 773, 778-779 (1972). This case actually supports the validity of the Mesquite ordinance under Texas law. 34 In the other case, Falfurrias Creamery Co. v. City of Laredo, 276 S.W.2d 351 (Tex.Civ.App.1955), the State had established an inspection program for dairies. One municipality then passed an ordinance under which milk could be sold within its borders only if inspected by a local inspector. The Texas Court of Civil Appeals concluded that this requirement was arbitrary, since the local inspector could easily determine whether other inspectors were "[making] inspect[ions] in accordance with the standard ordinance contemplated by the State law." Id., at 355. This single case dealing with a dairy-inspection requirement designed to favor local dairies cannot be the basis for a serious allegation that Texas law would not allow Mesquite to exercise its police power by keeping youths out of pinball parlors. 35 On the basis of an inference as weak as that afforded by Falfurrias Creamery, I would not remand to any court, state or federal. But even if the cited case law provided some support for appellee's challenge, the inclusion of three cursory state-law citations in a full discussion of federal law by a federal court is neither a reference to nor an adoption of an independent state ground. The Court's view allows federal courts overruling state statutes to avoid appellate review here simply by adding citations to state cases when applying federal law. 36 Nor is the Court's rigid approach today required by earlier decisions. In Konigsberg v. State Bar of California, 353 U.S. 252, 256-258, 77 S.Ct. 722, 724-725, 1 L.Ed.2d 810 (1957), for example, California argued that the California Supreme Court's order dismissing the petitioner's prayer for relief was based on an independent and adequate state ground: the requirements of a state procedural rule. The Court nevertheless proceeded to the merits of the federal question without remanding for clarification of the dismissal order's basis. This Court found the profferred sources of the alleged state procedural rule unconvincing and "conclu[ded] that the constitutional issues are before us and we must consider them." Id., at 258, 77 S.Ct., at 725 (footnote omitted).3 II 37 The Court gives three reasons for remanding. First, it observes that the language of the State Constitution, quoted in n. 2, supra, differs from that in the Federal Constitution and Texas may afford broader protection to individual rights than does the Federal Government. The relevant question is not, however, whether state law could be, or even is, different from federal law, but whether the Court of Appeals decided the case before it on state or federal grounds. In deciding this question, the citation of only three4 state cases is not, of course, determinative. Here, however, the Court of Appeals failed to discuss, explain, describe, or even state Texas law despite extensive discussion of federal law and cases. 38 The Court's second point is at least imaginative. It focuses on one sentence from Reed v. Reed, 404 U.S., at 76, 92 S.Ct., at 254, quoted in the Texas case of Texas Woman's University v. Chayklintaste, 530 S.W.2d 927, 928, ante, at 294, and n.17. That sentence reiterated a formulation of rational-basis analysis that was stated in F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920). The Court today then implies that "the Royster Guano standard" may no longer be good law, citing United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980).5 From this implication,6 the Court further infers that "the Texas standard and the federal standard" may not be congruent. The best answer to this speculative syllogism is found in the discussion of rational-basis analysis by the Court of Appeals. In an Appendix hereto I include the three paragraphs of the opinion that discuss the rational-relationship standard of review. It will be noted that nine United States Supreme Court cases were cited. Although three Texas cases were cited also, there is not the slightest indication that the Court of Appeals was distinguishing between federal and state law. Moreover, in the subsequent pages applying rational-relationship review, the court did not cite or discuss a single Texas case or any aspect of Texas law, though 11 federal cases were cited and discussed. 630 F.2d, at 1039-1040 (not included in Appendix). 39 Finally, the Court relies on our traditional reluctance to decide a constitutional question unnecessarily. But we noted jurisdiction to consider the validity of the Mesquite ordinance, and this question is squarely presented. As a general matter, the Court should avoid unnecessary remands; this is particularly true when the Court's mandatory jurisdiction has been invoked under § 1254(2). Neither the Court of Appeals nor appellee has presented any substantial reason for thinking that the Mesquite ordinance is invalid under Texas law independently of federal law that clearly was the basis for the decision below. In these circumstances, we have a duty to decide the substantive questions presented. APPENDIX TO OPINION OF JUSTICE POWELL* "1. Rational Basis 40 "Assuming that the rational basis test is the appropriate standard of review, we conclude that no such rationality supports ordinance No. 1353. The test requires that legislative action be rationally related to the accomplishment of a legitimate state purpose. First, the challenged legislation must have a legitimate public purpose based on promotion of the public welfare, health or safety. See, e.g., Rinaldi v. Yeager, 384 U.S. 305, 309-10 [86 S.Ct. 1497, 1499-1500, 16 L.Ed.2d 577] (1966); Falfurrias Creamery Co. v. City of Laredo, 276 S.W.2d 351 (Tex.Civ.App.1955, writ ref'd n. r. e.). Second, the act taken must bear a rational relation to the end it seeks to further. See e.g., Griswold v. Connecticut, 381 U.S. 479, at 505-507 [85 S.Ct. 1678, at 1693-94, 14 L.Ed.2d 510] (WHITE, J., concurring); Schware v. Board of Bar Examiners, 353 U.S. 232, 239 [77 S.Ct. 752, 756, 1 L.Ed.2d 796] (1957); City of University Park v. Benners, 485 S.W.2d 773, 778-79 (Tex.1972), appeal dismissed, 411 U.S. 901 [93 S.Ct. 1530, 36 L.Ed.2d 191] (1973). 41 "The requirement of legislative rationality in the service of legitimate purposes protects individuals and their liberties from official arbitrariness or unthinking prejudice. As one commentator noted, irrationality at least means 'patently useless in the service of any goal apart from whim or favoritism.' Michelman, Politics and Values or What's Really Wrong with Rationality Review? 13 Creighton Law Review 487, 499 (1979). The test requires that legislation constitute a means that is 'reasonable, not arbitrary and rests "upon some ground of difference having a fair and substantial relation to the object of the legislation . . ." ' Texas Woman's University v. Chayklintaste, 530 S.W.2d 927, 928 (Tex. 1979), citing Reed v. Reed, 404 U.S. 71, 76 [92 S.Ct. 251, 254, 30 L.Ed.2d 225] (1971). Accord, United States Department of Agriculture v. Moreno, 413 U.S. 528 [93 S.Ct. 2821, 37 L.Ed.2d 782] (1973); James v. Strange, 407 U.S. 128 [92 S.Ct. 2027, 32 L.Ed.2d 600] (1972); Jackson v. Indiana, 406 U.S. 715 [92 S.Ct. 1845, 32 L.Ed.2d 435] (1972); Stanley v. Illinois, 405 U.S. 645 [92 S.Ct. 1208, 31 L.Ed.2d 551] (1972); Eisenstadt v. Baird, 405 U.S. 438 [92 S.Ct. 1029, 31 L.Ed.2d 349] (1972). 42 "Examination of ordinance No. 1353 reveals two stated purposes. First, the ordinance seeks to prevent truancy. Second, it seeks to keep minors from being exposed to people 'who would promote gambling, sale of narcotics and other unlawful activities.' We conclude that the seventeen year old age requirement in no way rationally furthers these interests in regulating the associational activity of Mesquite's young citizens, even making the assumption that both of these goals are legitimate." 630 F.2d, at 1039. 1 630 F.2d 1029 (1980). 2 Section 6 of Ordinance 1353 of the Code of the city of Mesquite provided in pertinent part: "Any person desiring to obtain a license for a coin-operated amusement establishment shall apply to the City Secretary by original and five (5) copies, one of which shall be routed to the City Manager, Chief of Police, Chief Building Inspector and City Planner, for review. "Upon approval by each of the parties and payment of the license fee, the City Secretary shall issue a license for such establishment, which shall be valid for one (1) year and shall be non-transferable. "The Chief of Police shall make his recommendation based upon his investigation of the applicant's character and conduct as a law abiding person and shall consider past operations, if any, convictions of felonies and crimes involving moral turpitude and connections with criminal elements, taking into consideration the attraction by such establishments of those of tender years. "The Chief Building Inspector and City Planner shall determine compliance with applicable building and zoning ordinances of the City. "When the City Manager has received the recommendations from the Chief of Police, Chief Building Inspector and City Planner, he shall review such application together with such recommendations as may be furnished and shall approve such application or disapprove same with written notation of his reasons for disapproval. "Upon disapproval, the applicant may make such corrections as noted and request approval, request withdrawal and refund of license fee, or give notice of appeal from the City Manager's decision. "In the event of appeal from the City Manager's decision the applicant shall give written notice of his intention to appeal within ten (10) days of notice of the City Manager's decision. Such appeal shall be heard by the City Council within thirty (30) days from date of such notice unless a later date is agreed upon by applicant. "Upon appeal to the City Council of the City Manager's decision based upon an adverse recommendation by the Chief of Police as to applicant's character, the applicant shall have the same burden as prescribed in Article 305, V.A.C.S. to show to the Council that he or it is of good character as a law abiding citizen to such extent that a license should be issued. "Upon hearing the Council may reverse the decision of the City Manager in whole or in part or may affirm such decision. "An applicant may appeal such decision to the District Court within thirty (30) days but such appeal shall be upon the substantial evidence rule. "For violation of any of the requirements of this ordinance the City Manager may upon three (3) days notice of Licensee revoke the license granted hereunder. The same rights of appeal shall exist upon revocation as upon disapproval of the original application." App. to Juris. Statement 9-10. 3 Section 5 provides: "It shall be unlawful for any owner, operator or displayer of coin-operated amusement machines to allow any person under the age of seventeen (17) years to play or operate a coin-operated amusement machine unless such minor is accompanied by a parent or legal guardian." Id., at 8. 4 See Ordinance 1310. 5 The judgment of the trial court was affirmed by the Texas Court of Civil Appeals, 559 S.W.2d 92 (1977), and the Texas Supreme Court refused an application for a writ of error, 570 S.W.2d 377 (1978), finding no reversible error in the conclusion that the denial of the license was not supported by substantial evidence, but declining to reach the vagueness question. 6 Section 9 of Ordinance 1353 defined terms used in § 6 of the ordinance (quoted in n. 2, supra ), which had been reenacted without change. Section 9 provided in pertinent part: "Connection With Criminal Elements is defined as that state of affairs wherein an applicant, or an officer of, principal stockholder of, person having a substantial interest in or management responsibility for, a corporation or other organization wherein such organization is the applicant, directly or as parent, subsidiary or affiliate, has such association, acquaintance, or business association with parties having been convicted of a felony or crime involving moral turpitude or are otherwise involved in unlawful activities, whether convicted or not, to the extent that the fencing of stolen merchandise or illegally obtained funds, the procuring of prostitutes, the transfer or sale of narcotics or illegal substances is made more feasible or likely or the protection of those of tender years from such unwholesome influences are rendered more difficult. "A determination by the United States Department of Justice that a party is a member of the 'mafia' or 'Cosa Nostro' family or that such party is engaged in or affiliated with a nationwide crime organization, whether formally or informally, shall be prima facia evidence, so far as the issuance of a license hereunder, that such person has 'connections with criminal elements' and constitute, within the meaning of this ordinance, 'criminal elements'." App. to Juris. Statement 12-13. 7 434 F.Supp. 473 (1977), aff'd in part, rev'd and remanded in part, 630 F.2d 1029 (1980). 8 See Ordinance 1410, App. to Brief for Appellee A1-A11. 9 If it becomes apparent that a case has become moot while an appeal is pending, the judgment below normally is vacated with directions to dismiss the complaint. See United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36. 10 "The test for mootness in cases such as this is a stringent one. Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave '[t]he defendant . . . free to return to his old ways.' United States v. W. T. Grant Co., 345 U.S. 629, 632 [73 S.Ct. 894, 897, 97 L.Ed. 1303] (1953); see, e.g., United States v. Trans-Missouri Freight Assn., 166 U.S. 290 [17 S.Ct. 540, 41 L.Ed. 1007] (1897). A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. . . . Of course it is still open to appellees to show, on remand, that the likelihood of further violations is sufficiently remote to make injunctive relief unnecessary. [345 U.S.] at 633-636, [73 S.Ct., at 897-899]. This is a matter for the trial judge. But this case is not technically moot, an appeal has been properly taken, and we have no choice but to decide it." United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203-204, 89 S.Ct. 361, 364, 21 L.Ed.2d 344. 11 Indeed, the city has announced just such an intention. See Tr. of Oral Arg. 18-20. 12 The Court of Appeals summarized the relevant authorities as follows: "A law is void for vagueness if persons 'of common intelligence must necessarily guess at its meaning and differ as to its application. . . .' Smith v. Goguen, 415 U.S. 566, 572 n.8, [94 S.Ct. 1242, 1246, 39 L.Ed.2d 605] quoting Connally v. General Construction Co., 269 U.S. 385, 391 [46 S.Ct. 126, 127, 70 L.Ed. 322]. See generally Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960). The offense to due process lies in both the nature and consequences of vagueness. First, vague laws do not give individuals fair notice of the conduct proscribed. Papachristou v. City of Jacksonville, 405 U.S. 156, 162. [92 S.Ct. 839, 843, 31 L.Ed.2d 110] Accord Grayned v. City of Rockford, 408 U.S. 104, 108 & n. 3. [92 S.Ct. 2294, 2298, 33 L.Ed.2d 222] Second, vague laws do not limit the exercise of discretion by law enforcement officials; thus they engender the possibility of arbitrary and discriminatory enforcement. Grayned v. City of Rockford, 408 U.S. at 108-09 & n. 4; [92 S.Ct. at 2298-2299] Papachristou v. City of Jacksonville, 405 U.S. at 168-70. [92 S.Ct. at 846-847] Third, vague laws defeat the intrinsic promise of, and frustrate the essence of, a constitutional regime. We remain 'a government of laws, and not of men,' Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 163, [2 L.Ed. 60] only so long as our laws remain clear." 630 F.2d, at 1037 (citations abbreviated). 13 The ordinance is quoted in pertinent part in n. 2, supra. 14 Article 1, § 19, of the Texas Constitution provides: "No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land." Article 1, § 3, of the Texas Constitution provides in pertinent part: "All free men, when they form a social compact, have equal rights. . . ." 15 "Review of a judgment which we cannot disturb, because it rests adequately upon a basis not subject to our examination, would be an anomaly." 16 If this contention is correct, we may review the Court of Appeals' interpretation of federal law. Cf. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 568, 97 S.Ct. 2849, 2853, 53 L.Ed.2d 965; Mental Hygiene Dept. v. Kirchner, 380 U.S. 194, 198, 85 S.Ct. 871, 874, 13 L.Ed.2d 753; Missouri ex rel. Southern R. Co. v. Mayfield, 340 U.S. 1, 5, 71 S.Ct. 1, 3, 95 L.Ed. 3; Minnesota v. National Tea Co., 309 U.S. 551, 554-555, 60 S.Ct. 676, 678, 84 L.Ed. 920; State Tax Comm'n v. Van Cott, 306 U.S. 511, 514, 59 S.Ct. 605, 606, 83 L.Ed. 950. 17 In a section of its opinion entitled "Rational Basis," the Court of Appeals twice set forth a rational-basis test. See 630 F.2d, at 1039. In the first paragraph, the court stated that "[t]he test requires that legislative action be rationally related to the accomplishment of a legitimate state purpose," and cited both federal and state decisions in support of that formulation. In the second paragraph, the court stated that "[t]he test requires that legislation constitute a means that is 'reasonable, not arbitrary and rests "upon some ground of difference having a fair and substantial relation to the object of the legislation . . .," ' " quoting from a decision of the Texas Supreme Court, Texas Woman's University v. Chayklintaste, 530 S.W.2d 927, 928 (1975), which in turn quoted from Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225. A number of this Court's decisions were cited as in accord with this formulation. Although we cannot be sure, we might reasonably infer that the second formulation of the test represents the Court of Appeals' interpretation of Texas law. 18 Our dissenting Brethren suggest that our "view allows federal courts overruling state statutes to avoid appellate review here simply by adding citations to state cases when applying federal law," post, at 300 (POWELL, J., concurring in part and dissenting in part). We are unwilling to assume that any federal judge would discharge his judicial responsibilities in that fashion. In any event, in this case we merely hold that the Court of Appeals must explain the basis for its conclusion, if there be one, that the state ground is adequate and independent of the federal ground. 19 Cf. Mental Hygiene Dept. v. Kirchner, supra, 196-197, 85 S.Ct., at 873 (footnotes omitted): "The California Supreme Court did not state whether its holding was based on the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States or the equivalent provisions of the California Constitution, or both. While we might speculate from the choice of words used in the opinion, and the authorities cited by the court, which provision was the basis for the judgment of the state court, we are unable to say with any degree of certainty that the judgment of the California Supreme Court was not based on an adequate and independent nonfederal ground. This Court is always wary of assuming jurisdiction of a case from a state court unless it is plain that a federal question is necessarily presented, and the party seeking review here must show that we have jurisdiction of the case. Were we to assume that the federal question was the basis for the decision below, it is clear that the California Supreme Court, either on remand or in another case presenting the same issues, could inform us that its opinion was in fact based, at least in part, on the California Constitution, thus leaving the result untouched by whatever conclusions this Court might have reached on the merits of the federal question. For reasons that follow we conclude that further clarifying proceedings in the California Supreme Court are called for under the principles stated in Minnesota v. National Tea Co., 309 U.S. 551. [60 S.Ct. 676, 84 L.Ed. 920]" * I agree that this issue has not been mooted by the city's revision of the ordinance. This conclusion is not inconsistent with our recent disposition of Princeton University v. Schmid, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855 (per curiam ). In that case, Princeton University's regulations governing solicitation and similar activity on University property were held invalid by the New Jersey Supreme Court. While the case was pending before the New Jersey court, Princeton substantially amended the contested regulations. On appeal to this Court, we held that the validity of the old regulations had become a moot issue. Unlike the city of Mesquite, Princeton gave no indication that it desired to return to the original regulatory scheme and would do so absent a judicial barrier. In this case, as noted in the Court's opinion, Mesquite "has announced just such an intention." Ante at 289, n. 11. Because the test of whether the cessation of allegedly illegal action moots a case requires that we evaluate the likelihood that the challenged action will recur, County of Los Angeles v. Davis, 440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979), it is on this basis that our disposition of the two cases is consistent. 1 630 F.2d 1029, 1038-1039 (CA5 1980): "We hold that the seventeen year old age requirement violates both the United States and Texas constitutional guarantees of due process of law, and that the application of this age requirement to coin-operated amusement centers violates the federal and Texas constitutional guarantees of equal protection of the law" (footnotes omitted). 2 Tex.Const., Art. I, § 3 ("All free men, when they form a social compact, have equal rights . . .") and § 19 ("No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land"). 3 See also Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (reaching federal issues when interpretation of State Constitution depends on federal law); Cicenia v. Lagay, 357 U.S. 504, 507, n.2, 78 S.Ct. 1297, 1299, n.2, 2 L.Ed.2d 1523 (1958) (After looking at record and opinion below, Court concludes that State Supreme Court's dismissal appears to be based on federal ground); Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398 (1945) (The only cited sources for an independent state ground are considered insubstantial by the Court; Court proceeds to merits of federal issue); New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 69, 49 S.Ct. 61, 63, 73 L.Ed. 184 (1928) (Given that State Constitution has no Equal Protection Clause, Court concludes that federal law must have been determinative). In Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789 (1945), the lower court dismissed complaints with no indication of whether the dismissal was based on state or federal law. The Court continued the cases pending clarification of the lower court's decisional basis. In announcing this outcome, the Court stated that it would not review a judgment of a state court "until the fact that [the decision] does not [rest on an adequate and independent state ground] appears of record." Id., at 128, 65 S.Ct., at 464. Pitcairn did not, however, adopt the rigid rule the Court apparently adopts today. The Court continued to be willing to look at available record evidence (none was available in Pitcairn ) to determine whether the decision below was based on an adequate and independent state ground. See Cicenia v. Lagay, supra; Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957). 4 The Court reports that the Court of Appeals cited four Texas cases, but one case was cited as procedural history in the dispute between these parties, not as relevant to any question of Texas law. See 630 F.2d, at 1034, n.8. 5 Fritz was decided on December 9, 1980; as the Court of Appeals had decided this case on November 17, 1980, it could not have been influenced by Fritz. 6 This Court has never rejected either Royster Guano or Reed v. Reed. As stated in Fritz, "[t]he most arrogant legal scholar would not claim that all [Supreme Court] cases appl[y] a uniform or consistent test under equal protection principles." 449 U.S., at 177, n.10, 101 S.Ct., at 460, n.10. In view of the example we have set, there is no reason to perceive inferences of divergent federal- and state-court views because of the failure of the Court of Appeals or Texas courts to use entirely consistent terminology. Moreover, after its generalizations as to rational-basis analysis, the Court of Appeals for the Fifth Circuit went on to say that even if "the challenged ordinance had a rational basis . . . we would nevertheless be compelled to strike it down" as an infringement of the fundamental right of association. 630 F.2d, at 1041. No less than 29 federal cases were cited for this conclusion. No Texas case was cited. Id., at 1041-1044. * This includes the entire discussion of the rational-basis standard of review by the Court of Appeals. 630 F.2d, at 1039. It is this portion of the Court of Appeals' opinion that the Court today relies on for saying that "it is surely not evident that the Texas standard and the federal standard are congruent." Ante, at 294. See supra, at 301-302, and n.6.

34

455 U.S. 252 102 S.Ct. 1051 71 L.Ed.2d 127 UNITED STATES, Appellantv.Edwin D. LEE. No. 80-767. Argued Nov. 2, 1981. Decided Feb. 23, 1982. Syllabus Appellee, a farmer and carpenter, is a member of the Old Order Amish, who believe that there is a religiously based obligation to provide for their fellow members the kind of assistance contemplated by the social security system. During certain years when he employed other Amish to work on his farm and in his carpentry shop, appellee failed to withhold social security taxes from his employees or to pay the employer's share of such taxes because he believed that payment of the taxes and receipt of benefits would violate the Amish faith. After the Internal Revenue Service assessed him for the unpaid taxes, appellee paid a certain amount and then sued in Federal District Court for a refund, claiming that imposition of the taxes violated his First Amendment free exercise of religion rights and those of his employees. The District Court held the statutes requiring appellee to pay social security taxes unconstitutional as applied, basing its holding on both 26 U.S.C. § 1402(g), which exempts from social security taxes, on religious grounds, self-employed Amish and others, and the First Amendment. Held: 1. The exemption provided by § 1402(g), being available only to self-employed individuals, does not apply to employers or employees, and hence appellee and his employees are not within its provisions. P. 256. 2. The imposition of social security taxes is not unconstitutional as applied to such persons as appellee who object on religious grounds to receipt of public insurance benefits and to payment of taxes to support public insurance funds. Pp. 256-261. (a) While there is a conflict between the Amish faith and the obligations imposed by the social security system, not all burdens on religion are unconstitutional. The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest. Pp. 256-258. (b) Widespread individual voluntary coverage under social security would undermine the soundness of the social security system, and would make such system almost a contradiction in terms and difficult, if not impossible, to administer. Pp. 258-259. (c) It would be difficult to accommodate the social security system with myriad exceptions flowing from a wide variety of religious beliefs such as the Amish. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15, distinguished. There is no principled way for purposes of this case to distinguish between general taxes and those imposed under the Social Security Act. The tax system could not function if denominations were allowed to challenge it because tax payments were spent in a manner that violates their religious belief. Because the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax. Pp. 259-260. (d) Congress in § 1402(g) has accommodated, to the extent compatible with a comprehensive national program, the practices of those who believe it a violation of their faith to participate in the social security system. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. The tax imposed on employers to support the social security system must be uniformly applicable to all, except as Congress explicitly provides otherwise. Pp. 260-261. 497 F.Supp. 180, reversed and remanded. Lawrence G. Wallace, Washington, D. C., for appellant. Francis X. Caiazza, New Castle, Pa., for appellee. Chief Justice BURGER delivered the opinion of the Court. 1 We noted probable jurisdiction to determine whether imposition of social security taxes is unconstitutional as applied to persons who object on religious grounds to receipt of public insurance benefits and to payment of taxes to support public insurance funds. 450 U.S. 993, 101 S.Ct. 1693, 68 L.Ed.2d 192 (1981). The District Court, 497 F.Supp. 180, concluded that the Free Exercise Clause prohibits forced payment of social security taxes when payment of taxes and receipt of benefits violate the taxpayer's religion. We reverse. 2 * Appellee, a member of the Old Order Amish, is a farmer and carpenter. From 1970 to 1977, appellee employed several other Amish to work on his farm and in his carpentry shop. He failed to file the quarterly social security tax returns required of employers, withhold social security tax from his employees, or pay the employer's share of social security taxes.1 3 In 1978, the Internal Revenue Service assessed appellee in excess of $27,000 for unpaid employment taxes; he paid $91— the amount owed for the first quarter of 1973—and then sued in the United States District Court for the Western District of Pennsylvania for a refund, claiming that imposition of the social security taxes violated his First Amendment free exercise rights and those of his Amish employees.2 4 The District Court held the statutes requiring appellee to pay social security and unemployment insurance taxes unconstitutional as applied. 497 F.Supp. 180 (1980). The court noted that the Amish believe it sinful not to provide for their own elderly and needy and therefore are religiously opposed to the national social security system.3 The court also accepted appellee's contention that the Amish religion not only prohibits the acceptance of social security benefits, but also bars all contributions by Amish to the social security system. The District Court observed that in light of their beliefs, Congress has accommodated self-employed Amish and self-employed members of other religious groups with similar beliefs by providing exemptions from social security taxes. 26 U.S.C. § 1402(g).4 The court's holding was based on both the exemption statute for the self-employed and the First Amendment; appellee and others "who fall within the carefully circumscribed definition provided in 1402(g) are relieved from paying the employer's share of [social security taxes] as it is an unconstitutional infringement upon the free exercise of their religion."5 497 F.Supp., at 184. 5 Direct appeal from the judgment of the District Court was taken pursuant to 28 U.S.C. § 1252. II 6 The exemption provided by § 1402(g) is available only to self-employed individuals and does not apply to employers or employees. Consequently, appellee and his employees are not within the express provisions of § 1402(g). Thus any exemption from payment of the employer's share of social security taxes must come from a constitutionally required exemption. A. 7 The preliminary inquiry in determining the existence of a constitutionally required exemption is whether the payment of social security taxes and the receipt of benefits interferes with the free exercise rights of the Amish. The Amish believe that there is a religiously based obligation to provide for their fellow members the kind of assistance contemplated by the social security system. Although the Government does not challenge the sincerity of this belief, the Government does contend that payment of social security taxes will not threaten the integrity of the Amish religious belief or observance. It is not within "the judicial function and judicial competence," however, to determine whether appellee or the Government has the proper interpretation of the Amish faith; "[c]ourts are not arbiters of scriptural interpretation." Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 716, 101 S.Ct. 1425, 1431, 67 L.Ed.2d 624 (1981).6 We therefore accept appellee's contention that both payment and receipt of social security benefits is forbidden by the Amish faith. Because the payment of the taxes or receipt of benefits violates Amish religious beliefs, compulsory participation in the social security system interferes with their free exercise rights. 8 The conclusion that there is a conflict between the Amish faith and the obligations imposed by the social security system is only the beginning, however, and not the end of the inquiry. Not all burdens on religion are unconstitutional. See, e.g., Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879). The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest. Thomas, supra; Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). B 9 Because the social security system is nationwide, the governmental interest is apparent. The social security system in the United States serves the public interest by providing a comprehensive insurance system with a variety of benefits available to all participants, with costs shared by employers and employees.7 The social security system is by far the largest domestic governmental program in the United States today, distributing approximately $11 billion monthly to 36 million Americans.8 The design of the system requires support by mandatory contributions from covered employers and employees. This mandatory participation is indispensable to the fiscal vitality of the social security system. "[W]idespread individual voluntary coverage under social security . . . would undermine the soundness of the social security program." S.Rep.No. 404, 89th Cong., 1st Sess., pt. 1, p. 116 (1965), U.S.Code Cong. & Admin.News (1965), pp. 1943, 2056. Moreover, a comprehensive national social security system providing for voluntary participation would be almost a contradiction in terms and difficult, if not impossible, to administer. Thus, the Government's interest in assuring mandatory and continuous participation in and contribution to the social security system is very high.9 C 10 The remaining inquiry is whether accommodating the Amish belief will unduly interfere with fulfillment of the governmental interest. In Braunfeld v. Brown, 366 U.S. 599, 605, 81 S.Ct. 1144, 1146, 6 L.Ed.2d 563 (1961), this Court noted that "to make accommodation between the religious action and an exercise of state authority is a particularly delicate task . . . because resolution in favor of the State results in the choice to the individual of either abandoning his religious principle or facing . . . prosecution." The difficulty in attempting to accommodate religious beliefs in the area of taxation is that "we are a cosmopolitan nation made up of people of almost every conceivable religious preference." Braunfeld, supra, at 606, 81 S.Ct., at 1147. The Court has long recognized that balance must be struck between the values of the comprehensive social security system, which rests on a complex of actuarial factors, and the consequences of allowing religiously based exemptions. To maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some religious practices yield to the common good. Religious beliefs can be accommodated, see, e.g., Thomas, supra; Sherbert, supra, but there is a point at which accommodation would "radically restrict the operating latitude of the legislature." Braunfeld, supra, at 606, 81 S.Ct., at 1147.10 11 Unlike the situation presented in Wisconsin v. Yoder, supra, it would be difficult to accommodate the comprehensive social security system with myriad exceptions flowing from a wide variety of religious beliefs. The obligation to pay the social security tax initially is not fundamentally different from the obligation to pay income taxes; the difference—in theory at least—is that the social security tax revenues are segregated for use only in furtherance of the statutory program. There is no principled way, however, for purposes of this case, to distinguish between general taxes and those imposed under the Social Security Act. If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax. The tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief. See, e.g., Lull v. Commissioner, 602 F.2d 1166 (CA4 1979), cert. denied, 444 U.S. 1014, 100 S.Ct. 664, 62 L.Ed.2d 643 (1980); Autenrieth v. Cullen, 418 F.2d 586 (CA9 1969), cert. denied, 397 U.S. 1036, 90 S.Ct. 1353, 25 L.Ed.2d 647 (1970). Because the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax. III 12 Congress has accommodated, to the extent compatible with a comprehensive national program, the practices of those who believe it a violation of their faith to participate in the social security system. In § 1402(g) Congress granted an exemption, on religious grounds, to self-employed Amish and others.11 Confining the § 1402(g) exemption to the selfemployed provided for a narrow category which was readily identifiable. Self-employed persons in a religious community having its own "welfare" system are distinguishable from the generality of wage earners employed by others. 13 Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. Congress drew a line in § 1402(g), exempting the self-employed Amish but not all persons working for an Amish employer. The tax imposed on employers to support the social security system must be uniformly applicable to all, except as Congress provides explicitly otherwise.12 14 Accordingly, the judgment of the District Court is reversed, and the case is remanded for proceedings consistent with this opinion. 15 Reversed and remanded. 16 Justice STEVENS, concurring in the judgment. 17 The clash between appellee's religious obligation and his civic obligation is irreconcilable. He must violate either an Amish belief or a federal statute. According to the Court, the religious duty must prevail unless the Government shows that enforcement of the civic duty "is essential to accomplish an overriding governmental interest." Ante, at 257-258. That formulation of the constitutional standard suggests that the Government always bears a heavy burden of justifying the application of neutral general laws to individual conscientious objectors. In my opinion, it is the objector who must shoulder the burden of demonstrating that there is a unique reason for allowing him a special exemption from a valid law of general applicability. 18 Congress already has granted the Amish a limited exemption from social security taxes. See 26 U.S.C. § 1402(g). As a matter of administration, it would be a relatively simple matter to extend the exemption to the taxes involved in this case. As a matter of fiscal policy, an enlarged exemption probably would benefit the social security system because the nonpayment of these taxes by the Amish would be more than offset by the elimination of their right to collect benefits. In view of the fact that the Amish have demonstrated their capacity to care for their own, the social cost of eliminating this relatively small group of dedicated believers would be minimal. Thus, if we confine the analysis to the Government's interest in rejecting the particular claim to an exemption at stake in this case, the constitutional standard as formulated by the Court has not been met. 19 The Court rejects the particular claim of this appellee, not because it presents any special problems, but rather because of the risk that a myriad of other claims would be too difficult to process. The Court overstates the magnitude of this risk because the Amish claim applies only to a small religious community with an established welfare system of its own.1 Nevertheless, I agree with the Court's conclusion that the difficulties associated with processing other claims to tax exemption on religious grounds justify a rejection of this claim.2 I believe, however, that this reasoning supports the adoption of a different constitutional standard than the Court purports to apply. 20 The Court's analysis supports a holding that there is virtually no room for a "constitutionally required exemption" on religious grounds from a valid tax law that is entirely neutral in its general application.3 Because I agree with that holding, I concur in the judgment. 1 The Social Security Act and its subsequent amendments provide a system of old-age and unemployment benefits. 26 U.S.C. § 3101 et seq. (1976 ed. and Supp.III). These benefits are supported by various taxes, including, relevant to this appeal, the Federal Insurance Contributions Act (FICA) and the Federal Unemployment Tax Act (FUTA) taxes. The FICA tax is a tax paid in part by employees through withholding, 26 U.S.C. § 3101 (1976 ed., Supp.III), and in part by employers through an excise tax. 26 U.S.C. § 3111 (1976 ed., Supp.III). The FUTA tax is an excise tax imposed only on employers. 26 U.S.C. § 3301. Both taxes are based on the wages paid to employees, and the recordkeeping and transmittal of funds are obligations of the employer. Only the FICA tax is collected from self-employed individuals. In this case appellee failed to pay the employer's portion of the FICA taxes and FUTA taxes and failed to withhold his employee's contributions to the FICA taxes. An employer is liable for payment of the employee's share of FICA taxes whether or not he withholds the required amount of the employee's contribution. 26 U.S.C. § 3102(b). 2 Appellee also requested injunctive relief to prevent the Commissioner of Internal Revenue from attempting to collect the unpaid balance of the assessments. Under the Internal Revenue Code, injunctive relief is to be granted sparingly and only in exceptional circumstances. 26 U.S.C. § 7421(a) (1976 ed., Supp.III). The District Court therefore denied injunctive relief, but noted that should the Government attempt to collect the remaining payments "further Court relief could be requested." 497 F.Supp. 180, 184 (1980). 3 Appellee indicates that his scriptural basis for this belief was: "But if any provide not . . . for those of his own house, he hath denied the faith, and is worse than an infidel." (I Timothy 5: 8.) 4 Title 26 U.S.C. § 1402(g) provides, in part: "(1) Exemption Any individual may file an application . . . for an exemption from the tax imposed by this chapter if he is a member of a recognized religious sect or division thereof and is an adherent of established tenets or teachings of such sect or division by reason of which he is conscientiously opposed to acceptance of the benefits of any private or public insurance which makes payments in the event of death, disability, old-age, or retirement or makes payments toward the cost of, or provides services for, medical care (including the benefits of any insurance system established by the Social Security Act)." In order to qualify for the exemption, the applicant must waive his right to all social security benefits and the Secretary of Health and Human Services must find that the particular religious group makes sufficient provision for its dependent members. 5 The precise basis of the District Court opinion is not clear. The court recognized that on its face § 1402(g) does not apply to appellee because he is not a self-employed individual. The District Court nonetheless used the language of § 1402(g) to provide an exemption for appellee. The court's decision to grant appellee an exemption, however, appears to be based on its view that the statute was unconstitutional as applied. Consequently, this Court has jurisdiction under 28 U.S.C. § 1252 to hear the appeal. See also United States v. American Friends Service Committee, 419 U.S. 7, 9, n. 4, 95 S.Ct. 13, 14, n. 4, 42 L.Ed.2d 7 (1974). 6 This is not an instance in which the asserted claim is "so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause." Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S., at 715, 101 S.Ct., at 1431. At least one other religious organization has sought an exemption under § 1402(g). See also Henson v. Commissioner, 66 T.C. 835 (1976) (member of Sai Baba denied exemption because although opposed to insurance on religious grounds, the faith did not provide for its dependent members). 7 The Social Security Act was enacted in 1935 to provide supplementary retirement benefits. Over the following 45 years coverage has broadened, and the cost of the system has increased dramatically. See A. Abraham & D. Kopelman, Federal Social Security (1979). In 1939 the Act was amended to provide insurance benefits for retired workers, auxiliaries of retired workers and survivors of deceased workers. In 1950 coverage was extended to self-employed workers and to select other employees previously excluded. In 1954 and 1956 disability benefits were added and in 1965 Medicare benefits were made available to participants in the system. 8 National Commission on Social Security, Social Security in America's Future 5 (1981). 9 The fiscal soundness of the social security system has been the subject of several studies and of congressional concern. See, e.g., Congressional Budget Office, Paying for Social Security: Funding Options for the Near Term (1981). 10 See, e.g., Follett v. Town of McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938 (1944) (preacher not entitled to be free from taxes); Murdock v. Pennsylvania, 319 U.S. 105, 112, 63 S.Ct. 870, 874, 87 L.Ed. 1292 (1943) (same). 11 The District Court read this as extending to the present claims. We need not decide whether the Free Exercise Clause compelled an exemption as provided by § 1402(g); Congress' grant of the exemption was an effort toward accommodation. Nor do we need to decide whether, if Congress had, as the District Court believed, intended § 1402(g) to reach this case, conflicts with the Establishment Clause would arise. 12 We note that here the statute compels contributions to the system by way of taxes; it does not compel anyone to accept benefits. Indeed, it would be possible for an Amish member, upon qualifying for social security benefits, to receive and pass them along to an Amish fund having parallel objectives. It is not for us to speculate whether this would ease or mitigate the perceived sin of participation. 1 The Amish claim is readily distinguishable from the typical claim to an exemption from general tax obligations on the ground that the taxpayer objects to the government's use of his money; in the typical case the taxpayer is not in any position to supply the government with an equivalent substitute for the objectionable use of his money. 2 In my opinion, the principal reason for adopting a strong presumption against such claims is not a matter of administrative convenience. It is the overriding interest in keeping the government—whether it be the legislature or the courts—out of the business of evaluating the relative merits of differing religious claims. The risk that governmental approval of some and disapproval of others will be perceived as favoring one religion over another is an important risk the Establishment Clause was designed to preclude. 3 Today's holding is limited to a claim to a tax exemption. I believe, however, Page 263-Continued. that a standard that places an almost insurmountable burden on any individual who objects to a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes) better explains most of this Court's holdings than does the standard articulated by the Court today. See, e.g., Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (selective service laws); Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (Sunday closing laws); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (child labor laws); Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (compulsory vaccination laws); Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (polygamy law). The principal exception is Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15, in which the Court granted the Amish an exemption from Wisconsin's compulsory school-attendance law by actually applying the subjective balancing approach it purports to apply today. The Court's attempt to distinguish Yoder is unconvincing because precisely the same religious interest is implicated in both cases, and Wisconsin's interest in requiring its children to attend school until they reach the age of 16 is surely not inferior to the federal interest in collecting these social security taxes. There is also tension between this standard and the reasoning in Thomas v. Review Bd. of Indiana Employment Security Div., 101 S.Ct. 1425, 450 U.S. 707, 67 L.Ed.2d 624, and Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965. Arguably, however, laws intended to provide a benefit to a limited class of otherwise disadvantaged persons should be judged by a different standard than that appropriate for the enforcement of neutral laws of general applicability. Cf. Harris v. McRae, 448 U.S. 297, 349-357, 100 S.Ct. 2671, 2712-16, 65 L.Ed.2d 784 (STEVENS, J., dissenting). A tax exemption entails no cost to the claimant; if tax exemptions were dispensed on religious grounds, every citizen would have an economic motivation to join the favored sects. No comparable economic motivation could explain the conduct of the employees in Sherbert and Thomas. In both of those cases changes in work requirements dictated by the employer forced the employees to surrender jobs that they would have preferred to retain rather than accept unemployment compensation. In each case the treatment of the religious objection to the new job requirements as though it were tantamount to a physical impairment that made it impossible for the employee to continue to work under changed circumstances could be viewed as a protection against unequal treatment rather than a grant of favored treatment for the members of the religious sect. In all events, the decision in Thomas was clearly compelled by Sherbert.

23

455 U.S. 331 102 S.Ct. 1096 71 L.Ed.2d 188 NEW ENGLAND POWER COMPANY, Appellantv.NEW HAMPSHIRE et al. MASSACHUSETTS, et al., Appellants v. NEW HAMPSHIRE et al. Dennis J. ROBERTS, II, Attorney General of the State of Rhode Island, et al., Appellant v. NEW HAMPSHIRE et al. Nos. 80-1208, 80-1471, 80-1610. Argued Dec. 7, 1981. Decided Feb. 24, 1982. Syllabus Appellant New England Power Co., a public utility generating and transmitting electricity at wholesale, sells most of its power in Massachusetts and Rhode Island; its wholesale customers service less than 6% of New Hampshire's population. New England Power owns and operates hydroelectric units, some of which are located in New Hampshire. The units are licensed by the Federal Energy Regulatory Commission (FERC) pursuant to the Federal Power Act. A New Hampshire statute, enacted in 1913, prohibits a corporation engaged in the generation of electrical energy by water power from transmitting such energy out of the State unless approval is first obtained from the New Hampshire Public Utilities Commission. The statute empowers that Commission to prohibit the exportation of such energy when it determines that the energy "is reasonably required for use within this state and that the public good requires that it be delivered for such use." Since 1926, New England Power or its predecessor periodically obtained the Commission's approval to transmit electricity produced in New Hampshire to points outside the State. However, in 1980, after an investigation and hearings, the Commission withdrew such approval and ordered New England Power to arrange to sell the previously exported hydroelectric energy within New Hampshire. New England Power, the Commonwealth of Massachusetts, and the Attorney General of Rhode Island appealed the Commission's order to the New Hampshire Supreme Court, contending that the order was pre-empted by the Federal Power Act and imposed impermissible burdens on interstate commerce. The court rejected those arguments, holding, inter alia, that the "saving clause" of § 201(b) of the Federal Power Act granted New Hampshire authority to restrict the interstate transportation of hydroelectric power generated within the State. Section 201(b), which was enacted in 1935, provides that the Act's provisions delegating exclusive authority to the FERC to regulate the transmission and sale at wholesale of electric energy in interstate commerce "shall not . . . deprive a State or State commission of its lawful authority now exercised over the exportation of hydroelectric energy which is transmitted across a State line." Held : New Hampshire has sought to restrict the flow of privately owned and produced electricity in interstate commerce in a manner inconsistent with the Commerce Clause. Section 201(b) of the Federal Power Act does not provide an affirmative grant of authority to the State to do so. Pp. 338-344. (a) Absent authorizing federal legislation, the Commerce Clause precludes a state from mandating that its residents be given a preferred right of access over out-of-state consumers to natural resources located within its borders or to the products derived therefrom. The New Hampshire Commission's order is precisely the sort of protectionist regulation that the Commerce Clause declares off limits to the states. Moreover, the Commission's "exportation ban" places direct and substantial burdens on transactions in interstate commerce that cannot be squared with the Commerce Clause when they serve only to advance simple economic protectionism. Pp. 338-340. (b) In § 201(b), Congress did no more than leave standing whatever valid state laws then existed relating to the exportation of hydroelectric energy. Nothing in the legislative history or language of the statute evinces a congressional intent to alter the limits of state power otherwise imposed by the Commerce Clause, or to modify this Court's earlier holdings concerning the limits of state authority to restrain interstate trade. When Congress has not expressly stated its intent to sustain state legislation from attack under the Commerce Clause, this Court has no authority to rewrite its legislation based on mere speculation as to what Congress probably had in mind. Pp. 340-343. 120 N.H. 866, 424 A.2d 807, reversed and remanded. Samuel Huntington, Westborough, Mass., for appellant in 80-1208. Donald K. Stern, Boston, Mass., for appellants in 80-1471 and 80-1610. Gregory H. Smith, Concord, N. H., for appellees. Chief Justice BURGER delivered the opinion of the Court. 1 These three consolidated appeals present the question whether a state can constitutionally prohibit the exportation of hydroelectric energy produced within its borders by a federally licensed facility, or otherwise reserve for its own citizens the "economic benefit" of such hydroelectric power. 2 * Appellant New England Power Co. is a public utility which generates and transmits electricity at wholesale. It sells 75% of its power in Massachusetts and much of the remainder in Rhode Island; less than 6% of New Hampshire's population is serviced by New England Power's wholesale customers. New England Power owns and operates six hydroelectric generating stations on the Connecticut River, consisting of 27 generating units. Twenty-one of these units—with a capacity of 419.8 megawatts, or about 10% of New England Power's total generating capacity—are located within the State of New Hampshire. The units are licensed by the Federal Energy Regulatory Commission pursuant to Part I of the Federal Power Act, 41 Stat. 1063, as amended, 16 U.S.C. §§ 791a-823 (1976 ed. and Supp.IV). Since hydroelectric facilities operate without significant fuel consumption, these units can produce electricity at substantially lower cost than most other generating sources. 3 New England Power is a member of the New England Power Pool, whose utility-members own over 98% of the total generation capacity, and virtually all of the transmission facilities, in the six-state region. The objectives of the Power Pool, as described in the agreement among its members, are to assure the reliability of the region's bulk power supply and to attain "maximum practicable economy" through, inter alia, "joint planning, central dispatching . . . and coordinated construction, operation and maintenance of electric generation and transmission facilities owned or controlled by the Participants. . . ." New England Power Pool Agreement § 4.1, App. 31a. All member-owned generating facilities are placed under the control of the Power Pool's Dispatch Center. A computer calculates the cost of generation for each generating unit and assigns each unit an operating schedule that will minimize the cost of the region's total power supply. Power generated at the various units, including New England Power's Connecticut River hydroelectric stations, flows freely through the Pool's regional transmission network, or "grid." The energy is dispatched to members' customers as their power needs arise, without regard to generating source. The Pool bills each member the amount it would have cost the utility to meet its customers' load using only its own generating sources, minus that member's share of the savings resulting from the centralized dispatch system.1 4 A New Hampshire statute, enacted in 1913, provides: 5 "No corporation engaged in the generation of electrical energy by water power shall engage in the business of transmitting or conveying the same beyond the confines of the state, unless it shall first file notice of its intention so to do with the public utilities commission and obtain an order of said commission permitting it to engage in such business." N.H.Rev.Stat.Ann. § 374:35 (1966). 6 The statute empowers the New Hampshire Commission to prohibit the exportation of such electrical energy when it determines that the energy "is reasonably required for use within this state and that the public good requires that it be delivered for such use." Ibid. 7 Since 1926, New England Power or a predecessor company periodically applied for and obtained approval from the New Hampshire Commission to transmit electricity produced at the Connecticut River plants to points outside New Hampshire. However, on September 19, 1980, after an investigation and hearings, the Commission withdrew the authority formerly granted New England Power to export its hydroelectric energy, and ordered the company to "make arrangements to sell the previously exported hydroelectric energy to persons, utilities and municipalities within the State of New Hampshire. . . ."2 In its report accompanying the order, the Commission found that New Hampshire's population and energy needs were increasing rapidly; that, primarily because of its low "generating mix" of hydroelectric energy, the Public Service Company of New Hampshire, the State's largest electric utility, had generating costs about 25% higher than those of New England Power; and that if New England Power's hydroelectric energy were sold exclusively in New Hampshire, New Hampshire customers could save approximately $25 million a year. The Commission therefore concluded that New England Power's hydroelectric energy was "required for use within the State" of New Hampshire, and that discontinuation of its exportation would serve the "public good." App. to Juris. Statement in No. 80-1208, pp. 25-39. 8 The Commission did not, however, order New England Power to sever its connections with the Power Pool. So long as the electricity produced at New England Power's hydroelectric plants continues to flow through the Pool's regional transmission network, it will be impossible to contain that electricity within the State of New Hampshire in any physical sense. Although the precise contours of the Commission's order are unclear, it appears to require that New England Power sell electricity to New Hampshire utilities in an amount equal to the output of its in-state hydroelectric facilities, at special rates adjusted to reflect the entire savings attributable to the low-cost hydroelectric generation.3 9 New England Power, the Commonwealth of Massachusetts, and Dennis J. Roberts, II, Attorney General of Rhode Island, appealed the Commission's order to the Supreme Court of New Hampshire. They contended that the order was preempted by Parts I and II of the Federal Power Act, 16 U.S.C. §§ 791a-824k (1976 ed. and Supp.IV), and imposed impermissible burdens on interstate commerce. The court rejected these arguments, concluding that the "saving clause" of § 201(b) of the Federal Power Act, 16 U.S.C. § 824(b) (1976 ed., Supp.IV), granted New Hampshire authority to restrict the interstate transportation of hydroelectric power generated within the State. Appeal of New England Power Co., 120 N.H. 866, 876-877, 424 A.2d 807, 814 (1980).4 The court further held that the New Hampshire Commission's order did not interfere with the Federal Energy Regulatory Commission's exclusive regulatory authority over rates charged for interstate sales of electricity at wholesale. It thus remanded the case to permit the parties to "develop the mechanics of implemention" of the New Hampshire Commission's order, and mandated that New England Power "make appropriate adjustments and filings with the appropriate federal and State administrative agencies to enable New Hampshire to regain the benefit of its hydroelectric power." Id., at 878-879, 424 A.2d, at 815.5 10 We noted probable jurisdiction, 451 U.S. 981, 101 S.Ct. 2311, 68 L.Ed.2d 837 (1981), and we reverse. II 11 The Supreme Court of New Hampshire recognized that, absent authorizing federal legislation, it would be "questionable" whether a state could constitutionally restrict interstate trade in hydroelectric power. 120 N.H., at 876, 424 A.2d, at 814. Our cases consistently have held that the Commerce Clause of the Constitution, Art. I, § 8, cl. 3, precludes a state from mandating that its residents be given a preferred right of access, over out-of-state consumers, to natural resources located within its borders or to the products derived therefrom. E.g., Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979); Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923); West v. Kansas Natural Gas Co., 221 U.S. 229, 31 S.Ct. 564, 55 L.Ed. 716 (1911). Only recently, in Philadelphia v. New Jersey, 437 U.S. 617, 627, 98 S.Ct. 2531, 2537, 57 L.Ed.2d 475 (1978), we reiterated that "[t]hese 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' " (quoting Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 10, 49 S.Ct. 1, 3, 73 L.Ed. 147 (1928)).6 12 The order of the New Hampshire Commission, prohibiting New England Power from selling its hydroelectric energy outside the State of New Hampshire, is precisely the sort of protectionist regulation that the Commerce Clause declares off-limits to the states. The Commission has made clear that its order is designed to gain an economic advantage for New Hampshire citizens at the expense of New England Power's customers in neighboring states. Moreover, it cannot be disputed that the Commission's "exportation ban" places direct and substantial burdens on transactions in interstate commerce. SeePublic Utilities Comm'n v. Attleboro Steam & Electric Co., 273 U.S. 83, 47 S.Ct. 294, 71 L.Ed. 549 (1927). Such state-imposed burdens cannot be squared with the Commerce Clause when they serve only to advance "simple economic protectionism." Philadelphia v. New Jersey, supra, 437 U.S., at 624, 98 S.Ct., at 2535. 13 The Supreme Court of New Hampshire nevertheless upheld the order of the New Hampshire Commission on the ground that § 201(b) of the Federal Power Act expressly permits the State to prohibit the exportation of hydroelectric power produced within its borders. It is indeed well settled that Congress may use its powers under the Commerce Clause to "[confer] upon the States an ability to restrict the flow of interstate commerce that they would not otherwise enjoy." Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 44, 100 S.Ct. 2009, 2020, 64 L.Ed.2d 702 (1980). See Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 769, 65 S.Ct. 1515, 1520, 89 L.Ed. 1915 (1945). The dispositive question, however, is whether Congress in fact has authorized the states to impose restrictions of the sort at issue here. III 14 The national concern for planning, development, and comprehensive utilization of the country's water resources was very early expressed by Congress under its Commerce Clause powers. The Federal Water Power Act, now Part I of the Federal Power Act, 16 U.S.C. §§ 791a-823 (1976 ed. and Supp.IV), was enacted in 1920. The potential of water power as a source of electric energy led Congress to exercise its constitutional authority over navigable streams to regulate and encourage development of hydroelectric power generation "to meet the needs of an expanding economy." FPC v. Union Electric Co., 381 U.S. 90, 99, 85 S.Ct. 1253, 1258, 14 L.Ed.2d 239 (1965). 15 In 1935, Congress enacted Part II of the Federal Power Act, 16 U.S.C. §§ 824-824k (1976 ed. and Supp.IV), which delegated to the Federal Power Commission, now the Federal Energy Regulatory Commission, exclusive authority to regulate the transmission and sale at wholesale of electric energy in interstate commerce, without regard to the source of production. United States v. Public Utilities Comm'n of California, 345 U.S. 295, 73 S.Ct. 706, 97 L.Ed. 1020 (1953). The 1935 enactment was a "direct result" of this Court's holding in Public Utilities Comm'n v. Attleboro Steam & Electric Co., supra, that the states lacked power to regulate the rates governing interstate sales of electricity for resale. United States v. Public Utilities Comm'n of California, supra, 345 U.S., at 311, 73 S.Ct., at 715. Part II of the Act was intended to "fill the gap" created by Attleboro by establishing exclusive federal jurisdiction over such sales. 345 U.S., at 307-311, 73 S.Ct., at 713-715. 16 Section 201(b) of the Act provides, inter alia, that the provisions of Part II "shall not . . . deprive a State or State commission of its lawful authority now exercised over the exportation of hydroelectric energy which is transmitted across a State line." However, this provision is in no sense an affirmative grant of power to the states to burden interstate commerce "in a manner which would otherwise not be permissible." Southern Pacific Co. v. Arizona ex rel. Sullivan, supra, at 769, 65 S.Ct., at 1520. In § 201(b), Congress did no more than leave standing whatever valid state laws then existed relating to the exportation of hydroelectric energy; by its plain terms, § 201(b) simply saves from pre-emption under Part II of the Federal Power Act such state authority as was otherwise "lawful." The legislative history of the Act likewise indicates that Congress intended only that its legislation "tak[e]no authority from State commissions." H.R.Rep.No.1318, 74th Cong., 1st Sess., 8 (1935) (emphasis added). Nothing in the legislative history or language of the statute evinces a congressional intent "to alter the limits of state power otherwise imposed by the Commerce Clause," United States v. Public Utilities Comm'n of California, supra, 345 U.S., at 304, 73 S.Ct., at 712, or to modify the earlier holdings of this Court concerning the limits of state authority to restrain interstate trade. E.g., Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923); West v. Kansas Natural Gas Co., 221 U.S. 229, 31 S.Ct. 564, 55 L.Ed. 716 (1911). Rather, Congress' concern was simply "to define the extent of the federal legislation's pre-emptive effect on state law." Lewis v. BT Investment Managers, Inc., supra, 447 U.S., at 49, 100 S.Ct., at 2022.7 17 To support its argument to the contrary, New Hampshire relies on a single statement made on the floor of the House of Representatives during the debates preceding enactment of Part II. Congressman Rogers of New Hampshire stated: 18 "[T]he Senate bill as originally drawn would deprive certain States, I think five in all, of certain rights which they have over the exportation of hydroelectric energy which is transmitted across the State line. This situation has been taken care of by the House committee, and I hope when you come to it, section 201 of part II, that you will grant us the privilege to continue, as we have been for 22 years, to exercise our State right over the exportation of hydroelectric energy transmitted across State lines but produced up there in the granite hills of old New Hampshire." 79 Cong.Rec. 10527 (1935). 19 From this expression of "hope," New Hampshire concludes that Congress specifically intended to preserve the very statute at issue here. 20 Reliance on such isolated fragments of legislative history in divining the intent of Congress is an exercise fraught with hazards, and "a step to be taken cautiously." Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 26, 97 S.Ct. 926, 941, 51 L.Ed.2d 124 (1977); United States v. Public Utilities Comm'n of California, supra, 345 U.S., at 319-321, 73 S.Ct., at 719-720 (Jackson, J., concurring). However, even were we to accord significant weight to Congressman Rogers' statement, it would not support New Hampshire's contention that § 201(b) was intended to permit states to regulate free from Commerce Clause restraint. Congressman Rogers simply urged his colleagues not to "deprive" the State of New Hampshire of "rights" it already possessed—i.e., to ensure that the Act itself would not be read as pre-empting otherwise valid state legislation. 21 To be sure, some Members of Congress may have thought that no further protection of state authority was needed.8 Indeed, given that the Commerce Clause—independently of the Federal Power Act—restricts the ability of the states to regulate matters affecting interstate trade in hydroelectric energy, § 201(b) may in fact save little in the way of "lawful" state authority.9 But when Congress has not "expressly stated its intent and policy" to sustain state legislation from attack under the Commerce Clause, Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 427, 431, 66 S.Ct. 1142, 1153, 1155, 90 L.Ed. 1342 (1946), we have no authority to rewrite its legislation based on mere speculation as to what Congress "probably had in mind." SeeUnited States v. Public Utilities Comm'n of California, 345 U.S., at 319, 73 S.Ct., at 719 (Jackson, J., concurring); see also id., at 311, 73 S.Ct., at 715. We must construe § 201(b) as it is written, and as its legislative history indicates it was intended—as a standard "nonpre-emption" clause.10 IV 22 We conclude, therefore, that New Hampshire has sought to restrict the flow of privately owned and produced electricity in interstate commerce, in a manner inconsistent with the Commerce Clause. Section 201(b) of the Federal Power Act does not provide an affirmative grant of authority to the State to do so. For these reasons, the judgment of the Supreme Court of New Hampshire is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. 23 So ordered. 1 Testimony before the New Hampshire Public Utilities Commission in these cases indicated that the savings have been substantial. For example, in 1979, the savings attributable to the Power Pool's centralized dispatch system were reported at over $44 million. App. 35a, 56a. See generally Federal Energy Regulatory Commission, Office of Electric Power Regulation, Power Pooling in the United States 15-23, 39-41, 69-79 (1981), for a description of efficiencies attributable to pooling arrangements. 2 The order reads: "ORDERED, that the permission granted New England Power Company (NEPCO) to transmit hydroelectric energy from within the boundaries of the State to outside the State is hereby withdrawn as of thirty (30) days from the date of this Order; and it is "FURTHER ORDERED, that NEPCO make arrangements to sell the previously exported hydroelectric energy to persons, utilities and municipalities within the State of New Hampshire within thirty (30) days of the date of this Order; and it is "FURTHER ORDERED, that upon the completion of both units at Seabrook the Commission will again re-examine the issue of exportation." 3 For example, the Commission's staff economist testified at the hearings that New England Power could "allocate the benefits of low-cost hydroelectric power to New Hampshire through billing mechanisms" pursuant to which the power would be sold in New Hampshire at "economic cost"—i.e., the cost of producing the power, including depreciation, plus a return on invested capital. App. 38a-39a. The economist's analysis of the benefits which would ensue from restricting the "exportation" of hydroelectric energy in this manner—upon which the New Hampshire Commission relied heavily in its report—was based on the assumption that New England Power would simply enter into new unit power contracts with New Hampshire utilities for an amount of kilowatt hours equal to New England Power's average hydroelectric generation over the course of a number of years. 3 Tr. of Hearings before the N.H. Public Utilities Comm'n in DE 79-223, pp. 23-24, 1-35. Although the record is not entirely clear on this point, it appears that the "economic benefit," or "savings," attributable to New England Power's hydroelectric facilities is currently reflected in the company's general wholesale rates, and thus shared pro rata by its customers in Massachusetts, Rhode Island, and New Hampshire. App. 15a-18a. See also Brief for Appellant in No. 80-1208, p. 7. 4 The court also dismissed several arguments advanced only by appellants Massachusetts and Roberts—that § 201(b), as so interpreted, exceeded Congress' power under the Commerce Clause, Art. I, § 8, cl. 3, and violated both the Privileges and Immunities Clause, Art. IV, § 2, cl. 1, and the Tenth Amendment of the Constitution. 5 The parties inform us that the New Hampshire Commission has refrained from acting on remand pending this Court's disposition of the appeals. 6 We find no merit in New Hampshire's attempt to distinguish these cases on the ground that it "owns" the Connecticut River, the source of New England Power's hydroelectricity. Whatever the extent of the State's proprietary interest in the river, the pre-eminent authority to regulate the flow of navigable waters resides with the Federal Government, United States v. Twin City Power Co., 350 U.S. 222, 76 S.Ct. 259, 100 L.Ed. 240 (1956), which has licensed New England Power to operate its Connecticut River hydroelectric plants pursuant to a determination that those facilities are "best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or and benefit of interstate or foreign commerce," 16 U.S.C. § 803(a). New Hampshire's purported "ownership" of the Connecticut River therefore provides no justification for restricting or conditioning the use of these federally licensed units. See First Iowa Hydro-Electric Cooperative v. FPC, 328 U.S. 152, 66 S.Ct. 906, 90 L.Ed. 1143 (1946). Moreover, New Hampshire has done more than regulate use of the resource it assertedly owns; it has restricted the sale of electric energy, a product entirely distinct from the river waters used to produce it. See Utah Power & Light Co. v. Pfost, 286 U.S. 165, 179-181, 52 S.Ct. 548, 551, 552, 76 L.Ed. 1038 (1932). This product is manufactured by a private corporation using privately owned facilities. Thus, New Hampshire's reliance on Reeves, Inc. v. Stake, 447 U.S. 429, 100 S.Ct. 2271, 65 L.Ed.2d 244 (1980)—holding that a state may confine to its residents the sale of products it produces —is misplaced. 7 Indeed, had Congress intended § 201(b) to confer upon the states powers which they would have lacked in the absence of the federal legislation, it would have been anomalous to speak in terms of "authority now exercised." This language plainly assumes the prior existence of valid state authority; in addition, it appears to limit the saving effect of the provision to those few States in which the authority was in fact "exercised" in 1935. 8 On the other hand, it would not have been at all unusual had Congress taken care that the 1935 enactment not displace state authority in the area, without consideration of the scope of that authority or the extent to which it might be constrained by other provisions of federal law. See Milwaukee v. Illinois, 451 U.S. 304, 329, n.22, 101 S.Ct. 1784, 1798, n.22, 68 L.Ed.2d 114 (1981). 9 We need not speculate here as to the precise contours of § 201(b)'s saving effect. 10 Even were we to conclude that Congress intended § 201(b) to override restraints placed on state regulatory power by the Commerce Clause, there would remain a substantial question whether the order of the New Hampshire Commission was entitled to protection under that provision. Section 201(b) seeks to protect only state regulation relating to the "exportation" of hydroelectric power. However, New England Power cannot terminate its out-of-state transmission of hydroelectricity without substantial alterations in the regional transmission system to which its hydroelectric facilities are connected—alterations which the New Hampshire Commission did not appear to contemplate would be made. Appeal of New England Power Co., 120 N.H. 866, 876-877, 424 A.2d 807, 814 (1980). The operative effect of the Commission's order would be to compel New England Power to enter into new wholesale contracts with New Hampshire utilities, at rates fixed by the New Hampshire Commission to reflect the "economic cost" of the company's hydroelectric production. See supra, at 336, and n. 3. Appellants argue that such state regulation is incompatible with Part II of the Federal Power Act which vests in the Federal Energy Regulatory Commission exclusive ratemaking jurisdiction over "the sale of electric energy at wholesale in interstate commerce," 16 U.S.C. §§ 824(b), 824d-824f (1976 ed. and Supp. IV)—and conflicts directly with § 205(b) of the Federal Power Act, 16 U.S.C. § 824d(b), which prohibits utilities from maintaining "any unreasonable difference in rates . . . as between localities" with respect to sales subject to federal jurisdiction. Given our holding that the New Hampshire Commission's order violates the Commerce Clause, we need not decide this issue.

78

455 U.S. 422 102 S.Ct. 1148 71 L.Ed.2d 265 Laverne L. LOGANv.ZIMMERMAN BRUSH COMPANY et al. No. 80-5950. Argued Oct. 14, 1981. Decided Feb. 24, 1982. Syllabus The Illinois Fair Employment Practices Act (FEPA) barred employment discrimination on the basis of physical handicap unrelated to ability. To obtain relief, a complainant had to bring a charge of unlawful conduct before the Illinois Fair Employment Practices Commission (Commission) within 180 days of the occurrence of such alleged conduct. The statute then gave the Commission 120 days within which to convene a factfinding conference to obtain evidence, ascertain the parties' positions, and explore the possibility of a settlement. Appellant, an employee of appellee, was discharged purportedly because his short left leg made it impossible for him to perform his duties as a shipping clerk. Appellant filed a timely charge alleging unlawful termination of his employment, but apparently through inadvertence the Commission scheduled the factfinding conference for a date 5 days after expiration of the 120-day statutory period. The Commission denied appellee's motion that the charge be dismissed for failure to hold a timely conference. On appeal, the Illinois Supreme Court held that the failure to comply with the 120-day convening requirement deprived the Commission of jurisdiction to consider appellant's charge, and rejected appellant's argument that his federal due process and equal protection rights would be violated were the Commission's error allowed to extinguish his cause of action. Held: The judgment is reversed, and the case is remanded. 82 Ill.2d 99, 44 Ill.Dec. 308, 411 N.E.2d 277, reversed and remanded. 1 Justice BLACKMUN delivered the opinion of the Court, concluding that appellant was deprived of a protected property interest in violation of the Due Process Clause of the Fourteenth Amendment. Pp. 428-437. 2 (a) Appellant's right to use the FEPA's adjudicatory procedures is a species of property protected by the Due Process Clause. Cf. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865. The hallmark of property is an individual entitlement grounded in state law, which cannot be removed except "for cause," and appellant's right shares this characteristic. The 120-day limitation is a procedural limitation on the claimant's ability to assert his rights, not a substantive element of the FEPA claim. Pp. 428-433. 3 (b) A consideration of the competing interests involved—the importance of the private interest and the length or finality of the deprivation, the likelihood of governmental error, and the magnitude of the governmental interests—leads to the conclusion that appellant is entitled to have the Commission consider the merits of his charge, based upon the substantiality of the available evidence, before deciding whether to terminate his claim. The State's interest in refusing appellant's procedural request is, on the record, insubstantial. Pp. 433-435. 4 (c) The availability of a post-termination tort action does not provide appellant due process. It is the state system itself that destroys a complainant's property interest, by operation of law, whenever the Commission fails to convene a timely conference; appellant is challenging not the Commission's error but the "established state procedure" that destroys his entitlement without according him proper procedural safeguards. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420, distinguished. The Fourteenth Amendment requires " 'an opportunity . . . granted at a meaningful time and in a meaningful manner' . . . 'for [a] hearing appropriate to the nature of the case,' " Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113, and here appellant was denied such an opportunity. Pp. 435-437. 5 Justice BLACKMUN, in a separate opinion, joined by Justice BRENNAN, Justice MARSHALL, and Justice O'CONNOR, concluded that under the "rational-basis" standard, the Illinois statute, as interpreted and applied by the Illinois Supreme Court to establish two categories—those processed within the prescribed 120 days and thus entitled to full consideration on the merits, and otherwise identical claims not processed within the prescribed time and thus terminated without a hearing—deprived appellant of his Fourteenth Amendment right to equal protection of the laws. Pp. 438-442. 6 Justice POWELL, joined by Justice REHNQUIST, while not joining all the broad pronouncements on the law of equal protection in Justice BLACKMUN's separate opinion, also concluded that the challenged classification, as construed and applied in this case, failed to be rationally related to a state interest that would justify it, and thus violated appellant's right to equal protection of the laws. Pp. 443-444. 7 Gary H. Palm, Chicago, Ill., for appellant. 8 Jay A. Canel, Chicago, Ill., for appellee. 9 Justice BLACKMUN delivered the opinion of the Court.* 10 The issue in this case is whether a State may terminate a complainant's cause of action because a state official, for reasons beyond the complainant's control, failed to comply with a statutorily mandated procedure. 11 * A. 12 The Illinois Fair Employment Practices Act (FEPA or Act), Ill.Rev.Stat., ch. 48, ¶ 851 et seq. (1979), barred employment discrimination on the basis of "physical . . . handicap unrelated to ability." ¶ 853(a). It also established a comprehensive scheme for adjudicating allegations of discrimination. To begin the process, a complainant had to bring a charge of unlawful conduct before the Illinois Fair Employment Practices Commission (Commission) within 180 days of the occurrence of the allegedly discriminatory act. ¶ 858(a). The statute—in the provision directly at issue here—then gave the Commission 120 days within which to convene a factfinding conference designed to obtain evidence, ascertain the positions of the parties, and explore the possibility of a negotiated settlement. ¶ 858(b). If the Commission found "substantial evidence" of illegal conduct, it was to attempt to "eliminate the effect thereof . . . by means of conference and conciliation," ¶ 858(c), and, if that proved impossible, to issue a formal complaint against the employer within 180 days after the expiration of the 120-day period. ¶ 858(d). A formal adversary hearing was then to be held before a commissioner or duly appointed adjudicator, who was to make findings and who was empowered to recommend reinstatement, back-pay, and reasonable attorney's fees. ¶ 858.01. If the commissioner or adjudicator did not find substantial evidence of discrimination, he was to recommend dismissal of the charge. Ibid. 13 The findings and recommended order were to be filed with the Commission. A complainant was entitled to obtain review by the full Commission of any of the possible dispositions of his charge, including an initial determination that the evidence did not justify a complaint. The Commission was to file a written order and decision. ¶ 858.02; Illinois Fair Employment Practices Commission, Rules and Regulations, § 4.5 (1979). If still not satisfied, the complainant could seek judicial review of any Commission order. ¶ 860.1 B 14 On November 9, 1979, appellant Laverne L. Logan, a probationary employee hired one month previously, was discharged by appellee Zimmerman Brush Company, purportedly because Logan's short left leg made it impossible for him to perform his duties as a shipping clerk. Five days later, Logan, acting pro se, filed a charge with the Commission alleging that his employment had been unlawfully terminated because of his physical handicap. App. 3. This triggered the Commission's statutory obligation under ¶ 858(b) to convene a factfinding conference within 120 days; in Logan's case, this meant by March 13, 1980. Apparently through inadvertence, the Commission's representative scheduled the conference for March 18, five days after expiration of the statutory period. Notice of the meeting, which was mailed to both parties in January 1980, specified the hearing's date and location and declared that attendance was "required." It, however, did not allude to the FEPA's 120-day time limit. App. 5. The Commission also asked the company to complete a short questionnaire concerning its employment practices, and directed that it submit its answers by March 10. Ibid. The company did this without objection. 15 When the conference date arrived, the company moved that Logan's charge be dismissed because the Commission had failed to hold the conference within the statutorily-mandated 120-day period. Id., at 12. This request was rejected. Id., at 16. The company thereupon petitioned the Supreme Court of Illinois for an original writ of prohibition. That court stayed proceedings on Logan's complaint pending decision on the request for a writ. Id., at 24. Logan meanwhile obtained counsel, and—because 180 days had not yet passed since the occurrence of the allegedly discriminatory act—filed a second charge with the Commission. Id., at 26. 16 Before the Illinois Supreme Court, Logan argued that terminating his claim because of the Commission's failure to convene a timely conference—a matter beyond Logan's, or indeed the company's, control—would violate his federal rights to due process and equal protection of the laws. But the court noted that the statutory provision at issue, ¶ 858(b), declared: "Within 120 days of the proper filing of a charge, the Commission shall convene a fact finding conference. . . ." (Emphasis added.) The Illinois court found this legislative language to be mandatory, and accordingly it held that failure to comply deprived the Commission of jurisdiction to consider Logan's charge. Zimmerman Brush Co. v. Fair Employment Practices Comm'n, 82 Ill.2d 99, 44 Ill.Dec. 308, 411 N.E.2d 277 (1980). 17 The court found controlling its decision in Springfield-Sangamon County Regional Planning Comm'n v. Fair Employment Practices Comm'n, 71 Ill.2d 61, 15 Ill.Dec. 623, 373 N.E.2d 1307 (1978),2 where it had determined that ¶ 858(c)'s 180-day deadline for issuing a complaint was mandatory; since the state legislature wrote ¶ 858(b) after the Springfield-Sangamon decision, and used language similar to that employed in ¶ 858(c), it must have intended the 120-day time limit to be jurisdictional as well. This result, reasoned the court, comported with the statute's purposes by facilitating the "just and expeditious resolutions of employment disputes," 82 Ill.2d, at 107, 44 Ill.Dec., at 313, 411 N.E.2d, at 282, while protecting employers " 'from unfounded charges of discrimination,' " id., at 106, 44 Ill.Dec., at 312, 411 N.E.2d, at 281, quoting ¶ 851. 18 The Illinois Supreme Court summarily rejected Logan's argument that his due process and equal protection rights would be violated were the Commission's error allowed to extinguish his cause of action. The state legislature had established the right to redress for discriminatory employment practices, it was said, and "[t]he legislature could establish reasonable procedures to be followed upon a charge. . . ." Id., at 108, 44 Ill.Dec., at 313, 411 N.E.2d, at 282. The court then went on to rule that Logan could not file a second charge with the Commission based upon the same act of alleged discrimination, for to allow the second complaint to proceed would circumvent the design of the Act and frustrate the public interest in an expeditious resolution of disputes.3 Id., at 108-109, 44 Ill.Dec., at 313-314, 411 N.E.2d, at 282-283. 19 Logan appealed, bringing his federal claims to this Court. We noted probable jurisdiction. 450 U.S. 909, 101 S.Ct. 1345, 67 L.Ed.2d 332 (1981). II A. 20 Justice Jackson, writing for the Court in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), observed: "Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." Id., at 313, 70 S.Ct., at 656. At the outset, then, we are faced with what has become a familiar two-part inquiry: we must determine whether Logan was deprived of a protected interest, and, if so, what process was his due. 21 The first question, we believe, was affirmatively settled by the Mullane case itself, where the Court held that a cause of action is a species of property protected by the Fourteenth Amendment's Due Process Clause.4 There, the Court confronted a challenge to a state law that provided for the settlement of common trust fund accounts by fiduciaries, upon notice given through newspaper publication. The effect of the statute was to terminate "every right which beneficiaries would otherwise have against the trust company . . . for improper management of the common trust fund." Id., at 311, 70 S.Ct., at 655. This, the Court concluded, worked to deprive the beneficiaries of property by, among other things, "cut[ting] off their rights to have the trustee answer for negligent or illegal impairments of their interests." Id., at 313, 70 S.Ct., at 656. Such a result was impermissible unless constitutionally adequate notice and hearing procedures were established before the settlement process went into effect. Id., at 315, 70 S.Ct., at 657. Despite appellee Zimmerman Brush Company's arguments to the contrary, we see no meaningful distinction between the cause of action at issue in Mullane and Logan's right to use the FEPA's adjudicatory procedures. 22 This conclusion is hardly a novel one. The Court traditionally has held that the Due Process Clauses protect civil litigants who seek recourse in the courts, either as defendants hoping to protect their property or as plaintiffs attempting to redress grievances. In Societe Internationale v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958), for example—where a plaintiff's claim had been dismissed for failure to comply with a trial court's order—the Court read the "property" component of the Fifth Amendment's Due Process Clause to impose "constitutional limitations upon the power of courts, even in aid of their own valid processes, to dismiss an action without affording a party the opportunity for a hearing on the merits of his cause." Id., at 209, 78 S.Ct., at 1094. See also Hammond Packing Co. v. Arkansas, 212 U.S. 322, 349-351, 29 S.Ct. 370, 379-380, 53 L.Ed. 530 (1909) (power to enter default judgment); Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215 (1897) (same); Windsor v. McVeigh, 93 U.S. 274, 23 L.Ed. 914 (1876) (same). Cf. Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). Similarly, the Fourteenth Amendment's Due Process Clause has been interpreted as preventing the States from denying potential litigants use of established adjudicatory procedures, when such an action would be "the equivalent of denying them an opportunity to be heard upon their claimed right[s]." Boddie v. Connecticut, 401 U.S. 371, 380, 91 S.Ct. 780, 787, 28 L.Ed.2d 113 (1971).5 23 In any event, the view that Logan's FEPA claim is a constitutionally protected one follows logically from the Court's more recent cases analyzing the nature of a property interest. The hallmark of property, the Court has emphasized, is an individual entitlement grounded in state law, which cannot be removed except "for cause." Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11-12, 98 S.Ct. 1554, 1561-1562, 56 L.Ed.2d 30 (1978); Goss v. Lopez, 419 U.S. 565, 573-574, 95 S.Ct. 729, 735-736, 42 L.Ed.2d 725 (1975); Board of Regents v. Roth, 408 U.S. 564, 576-578, 92 S.Ct. 2701, 2708-2709, 33 L.Ed.2d 548 (1972). Once that characteristic is found, the types of interests protected as "property" are varied and, as often as not, intangible, relating "to the whole domain of social and economic fact." National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 646, 69 S.Ct. 1173, 1209, 93 L.Ed. 1556 (1949) (Frankfurter, J., dissenting); Arnett v. Kennedy, 416 U.S. 134, 207-208, and n.2, 94 S.Ct. 1633, 1670-1671, and n.2, 40 L.Ed.2d 15 (1974) (MARSHALL, J., dissenting); Board of Regents v. Roth, 408 U.S., at 571-572, 576-577, 92 S.Ct., at 2705-2706, 2708-2709. See, e.g., Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979) (horse trainer's license protected); Memphis Light, Gas & Water Div. v. Craft, supra (utility service); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (disability benefits); Goss v. Lopez, supra (high school education); Connell v. Higginbotham, 403 U.S. 207, 91 S.Ct. 1772, 29 L.Ed.2d 418 (1971) (government employment); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) (driver's license); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (welfare benefits). 24 The right to use the FEPA's adjudicatory procedures shares these characteristics. A claimant has more than an abstract desire or interest in redressing his grievance: his right to redress is guaranteed by the State, with the adequacy of his claim assessed under what is, in essence, a "for cause" standard, based upon the substantiality of the evidence. And an FEPA claim, which presumably can be surrendered for value, is at least as substantial as the right to an education labeled as property in Goss v. Lopez, supra.6 Certainly, it would require a remarkable reading of a "broad and majestic ter[m]," Board of Regents v. Roth, 408 U.S., at 571, 92 S.Ct., at 2705, to conclude that a horse trainer's license is a protected property interest under the Fourteenth Amendment, while a state-created right to redress discrimination is not. 25 The Illinois Supreme Court nevertheless seemed to believe that no individual entitlement could come into being under the FEPA until the Commission took appropriate action within the statutory deadline. Because the entitlement arises from statute, the court reasoned, it was the legislature's prerogative to establish the "procedures to be followed upon a charge." 82 Ill.2d, at 108, 44 Ill.Dec., at 313, 411 N.E.2d, at 282. This analysis, we believe, misunderstands the nature of the Constitution's due process guarantee. 26 Each of our due process cases has recognized, either explicitly or implicitly, that because "minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action." Vitek v. Jones, 445 U.S. 480, 491, 100 S.Ct. 1254, 1263, 63 L.Ed.2d 552 (1980). See Arnett v. Kennedy, 416 U.S., at 166-167, 94 S.Ct., at 1650-1651 (POWELL, J., concurring in part); id., at 211, 94 S.Ct., at 1672 (MARSHALL, J., dissenting). Indeed, any other conclusion would allow the State to destroy at will virtually any state-created property interest. The Court has considered and rejected such an approach: " 'While the legislature may elect not to confer a property interest, . . . it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards. . . . [T]he adequacy of statutory procedures for deprivation of a statutorily created property interest must be analyzed in constitutional terms.' " Vitek v. Jones, 445 U.S., at 490-491, n.6, 100 S.Ct., at 1262-1263 n.6, quoting Arnett v. Kennedy, 416 U.S., at 167, 94 S.Ct., at 1650 (opinion concurring in part). 27 Of course, the State remains free to create substantive defenses or immunities for use in adjudication—or to eliminate its statutorily created causes of action altogether—just as it can amend or terminate its welfare or employment programs. The Court held as much in Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), where it upheld a California statute granting officials immunity from certain types of state tort claims. We acknowledged that the grant of immunity arguably did deprive the plaintiffs of a protected property interest. But they were not thereby deprived of property without due process, just as a welfare recipient is not deprived of due process when the legislature adjusts benefit levels. Cf. U. S. Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 174, 101 S.Ct. 453, 459, 66 L.Ed.2d 368 (1980); Hisquierdo v. Hisquierdo, 439 U.S. 572, 575, 99 S.Ct. 802, 805, 59 L.Ed.2d 1 (1979); Flemming v. Nestor, 363 U.S. 603, 609-610, 80 S.Ct. 1367, 1371-1372, 4 L.Ed.2d 1435 (1960); Chase Securities Corp. v. Donaldson, 325 U.S. 304, 312, n.8, 315-316, 65 S.Ct. 1137, 1141, n.8, 1142-1143, 89 L.Ed. 1628 (1945). In each case, the legislative determination provides all the process that is due, see Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441, 445-446, 36 S.Ct. 141, 142-143, 60 L.Ed. 372 (1915); it "remain[s] true that the State's interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational." Martinez v. California, 444 U.S., at 282, 100 S.Ct., at 557. Indeed, as was acknowledged in Martinez, it may well be that a substantive "immunity defense, like an element of the tort claim itself, is merely one aspect of the State's definition of that property interest." Id., at 282, n.5, 100 S.Ct., at 557, n.5. Cf. Ferri v. Ackerman, 444 U.S. 193, 198, 100 S.Ct. 402, 406, 62 L.Ed.2d 355 (1979). 28 The 120-day limitation in the FEPA, ¶ 858(b), of course, involves no such thing. It is a procedural limitation on the claimant's ability to assert his rights, not a substantive element of the FEPA claim. Because the state scheme has deprived Logan of a property right, then, we turn to the determination of what process is due him. B 29 As our decisions have emphasized time and again, the Due Process Clause grants the aggrieved party the opportunity to present his case and have its merits fairly judged. Thus it has become a truism that "some form of hearing" is required before the owner is finally deprived of a protected property interest. Board of Regents v. Roth, 408 U.S., at 570-571, n.8, 92 S.Ct., at 2704-2705, n.8 (emphasis in original). And that is why the Court has stressed that, when a "statutory scheme makes liability an important factor in the State's determination . . ., the State may not, consistent with due process, eliminate consideration of that factor in its prior hearing." Bell v. Burson, 402 U.S., at 541, 91 S.Ct., at 1590. To put it as plainly as possible, the State may not finally destroy a property interest without first giving the putative owner an opportunity to present his claim of entitlement.7 Seeid., at 542, 91 S.Ct., at 1591. 30 On the other hand, the Court has acknowledged that the timing and nature of the required hearing8 "will depend on appropriate accommodation of the competing interests involved." Goss v. Lopez, 419 U.S., at 579, 95 S.Ct., at 738. These include the importance of the private interest and the length or finality of the deprivation, see Memphis Light, Gas & Water Div. v. Craft, 436 U.S., at 19, 98 S.Ct., at 1565, and Mathews v. Eldridge, 424 U.S., at 334-335, 96 S.Ct., at 902-903; the likelihood of governmental error, see id., at 335, 96 S.Ct., at 903; and the magnitude of the governmental interests involved, see ibid., and Wolff v. McDonnell, 418 U.S., at 561-563, 94 S.Ct., at 2977-2978. 31 Each of these factors leads us to conclude that appellant Logan is entitled to have the Commission consider the merits of his charge, based upon the substantiality of the available evidence, before deciding whether to terminate his claim. Logan's interests in retaining his employment, in disproving his employer's charges of incompetence or inability, and—more intangibly—in redressing an instance of alleged discrimination, are all substantial. At the same time, the deprivation here is final; Logan, unlike a claimant whose charge is dismissed on the merits for lack of evidence, cannot obtain judicial review of the Commission action. A system or procedure that deprives persons of their claims in a random manner, as is apparently true of ¶ 858(b), necessarily presents an unjustifiably high risk that meritorious claims will be terminated. And the State's interest in refusing Logan's procedural request is, on this record, insubstantial. 32 There has been no suggestion that any great number of claimants are in Logan's position, or that directing the State to consider the merits of Logan's claim will be unduly burdensome. In any event, the State by statute has eliminated the mandatory hearing requirement, see n.1, supra, demonstrating that it no longer has any appreciable interest in defending the procedure at issue. 33 Despite appellee Zimmerman Brush Company's arguments, the recent decision in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), is not to the contrary. There, a state employee negligently lost a prisoner's hobby kit; while the Court concluded that the prisoner had suffered a deprivation of property within the meaning of the Fourteenth Amendment, it held that all the process due was provided by the State's tort claims procedure. In such a situation, the Court observed, "[i]t is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place." Id., at 541, 101 S.Ct., at 1916. The company suggests that Logan is complaining of the same type of essentially negligent deprivation, and that he therefore should be remitted to the tort remedies provided by the Illinois Court of Claims Act, Ill.Rev.Stat., ch. 37, ¶ 439.1 et seq. (1979). That statute allows an action "against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person." ¶ 439.8(d).9 34 This argument misses Parratt's point. In Parratt, the Court emphasized that it was dealing with "a tortious loss of . . . property as a result of a random and unauthorized act by a state employee . . . not a result of some established state procedure." 451 U.S., at 541, 101 S.Ct., at 1915. Here, in contrast, it is the state system itself that destroys a complainant's property interest, by operation of law, whenever the Commission fails to convene a timely conference—whether the Commission's action is taken through negligence, maliciousness, or otherwise. Parratt was not designed to reach such a situation. See id., at 545, 101 S.Ct., at 1918 (second concurring opinion). Unlike the complainant in Parratt, Logan is challenging not the Commission's error, but the "established state procedure" that destroys his entitlement without according him proper procedural safeguards. 35 In any event, the Court's decisions suggest that, absent "the necessity of quick action by the State or the impracticality of providing any predeprivation process," a post-deprivation hearing here would be constitutionally inadequate. Parratt, 451 U.S., at 539, 101 S.Ct., at 1915. See Memphis Light, Gas & Water Div. v. Craft, 436 U.S., at 19-20, 98 S.Ct., at 1565-1566; Board of Regents v. Roth, 408 U.S., at 570, n.7, 92 S.Ct., at 2704, n.7; Bell v. Burson, 402 U.S., at 542, 91 S.Ct., at 1591; Boddie v. Connecticut, 401 U.S., at 379, 91 S.Ct., at 786. Cf. Barry v. Barchi, 443 U.S., at 64-65, 99 S.Ct., at 2649-2650 (post-termination hearing permitted where the decision to terminate was based on a reliable pretermination finding); Mathews v. Eldridge, 424 U.S., at 343-347, 96 S.Ct., at 906-908 (same). That is particularly true where, as here, the State's only post-termination process comes in the form of an independent tort action.10 Seeking redress through a tort suit is apt to be a lengthy and speculative process, which in a situation such as this one will never make the complainant entirely whole: the Illinois Court of Claims Act does not provide for reinstatement—as the appellee Zimmerman Brush Company conceded at oral argument, Tr. of Oral Arg. 39—and even a successful suit will not vindicate entirely Logan's right to be free from discriminatory treatment. 36 Obviously, nothing we have said entitles every civil litigant to a hearing on the merits in every case. The State may erect reasonable procedural requirements for triggering the right to an adjudication, be they statutes of limitations, cf. Chase Securities Corp. v. Donaldson, 325 U.S., at 314-316, 65 S.Ct., at 1142-1143, or, in an appropriate case, filing fees. United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973). And the State certainly accords due process when it terminates a claim for failure to comply with a reasonable procedural or evidentiary rule. Hammond Packing Co. v. Arkansas, 212 U.S., at 351, 29 S.Ct., at 380; Windsor v. McVeigh, 93 U.S., at 278. What the Fourteenth Amendment does require, however, "is 'an opportunity . . . granted at a meaningful time and in a meaningful manner,' Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965) (emphasis added), 'for [a] hearing appropriate to the nature of the case,' Mullane v. Central Hanover Tr. Co., supra, 339 U.S., at 313, 70 S.Ct., at 656." Boddie v. Connecticut, 401 U.S., at 378, 91 S.Ct., at 786. It is such an opportunity that Logan was denied. III 37 The judgment of the Supreme Court of Illinois, accordingly, is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. 38 It is so ordered. 39 Justice BLACKMUN, with whom Justice BRENNAN, Justice MARSHALL, and Justice O'CONNOR join. 40 The Court's opinion, ante, considers appellant Logan's due process claim and decides that issue in his favor. As has been noted, Logan also raised an equal protection claim and that issue has been argued and briefed here. Although the Court considered that it was unnecessary to discuss and dispose of the equal protection claim when the due process issue was being decided in Logan's favor, I regard the equal protection issue as sufficiently important to require comment on my part,1 particularly inasmuch as a majority of the Members of the Court are favorably inclined toward the claim, although, to be sure, that majority is not the one that constitutes the Court for the controlling opinion. 41 On its face, Logan's equal protection claim is an unconventional one. The Act's ¶ 858(b) establishes no explicit classifications and does not expressly distinguish between claimants, and the company therefore argues that Logan has no more been deprived of equal protection than anyone would be who is injured by a random act of governmental misconduct. As the Illinois Supreme Court interpreted the statute, however, ¶ 858(b) unambiguously divides claims—and thus, necessarily, claimants—into two discrete groups that are accorded radically disparate treatment. Claims processed within 120 days are given full consideration on the merits, and complainants bringing such charges are awarded the opportunity for full administrative and judicial review. In contrast, otherwise identical claims that do not receive a hearing within the statutory period are unceremoniously, and finally, terminated. Because the Illinois court recognized, in so many words, that the FEPA establishes two categories of claims, one may proceed to determine whether the classification drawn by the statute is consistent with the Fourteenth Amendment. 42 For over a century, the Court has engaged in a continuing and occasionally almost metaphysical effort to identify the precise nature of the Equal Protection Clause's guarantees.2 At the minimum level, however, the Court "consistently has required that legislation classify the persons it affects in a manner rationally related to legitimate governmental objectives." Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 1080, 67 L.Ed.2d 186 (1981). This is not a difficult standard for a State to meet when it is attempting to act sensibly and in good faith. But the "rational-basis standard is 'not a toothless one,' " id., at 234, 101 S.Ct., at 1082, quoting Mathews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 2764, 49 L.Ed.2d 651 (1976); the classificatory scheme must "rationally advanc[e] a reasonable and identifiable governmental objective." Schweiker v. Wilson, 450 U.S., at 235, 101 S.Ct., at 1083. I see no need to explore the outer bounds of this test, for I find that the Illinois statute runs afoul of the lowest level of permissible equal protection scrutiny. 43 The FEPA itself has two express purposes: eliminating employment discrimination, and protecting employers and other potential defendants "from unfounded charges of discrimination." ¶ 851. It is evident at a glance that neither of these objectives is advanced by ¶ 858(b)'s deadline provision. Terminating potentially meritorious claims in a random manner obviously cannot serve to redress instances of discrimination. And it cannot protect employers from unfounded charges, for the frivolousness of a claim is entirely unrelated to the length of time the Commission takes to process that claim. So far as this purpose is concerned, ¶ 858(b) stands on precisely the same footing as the state statute invalidated in Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972). There, the Court struck down a provision requiring a tenant to post a double bond before appealing an adverse forcible entry judgment. "The claim that the double-bond requirement operates to screen out frivolous appeals is unpersuasive," the Court noted, "for it not only bars nonfrivolous appeals by those who are unable to post the bond but also allows meritless appeals by others who can afford the bond." Id., at 78, 92 S.Ct., at 876. Accord, Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577 (1966). Here, of course, the FEPA may operate to terminate meritorious claims without any hearing at all, while allowing frivolous complaints to proceed through the entire administrative and judicial review process. While it may well be true that "[n]o bright line divides the merely foolish from the arbitrary law," Schweiker v. Wilson, 450 U.S., at 243, 101 S.Ct., at 1087 (dissenting opinion), I have no doubt that ¶ 858(b) is patently irrational in the light of its stated purposes. 44 In its opinion, however, the Illinois Supreme Court recognized a third rationale for ¶ 858(b): that provision, according to the court, was designed to further the "just and expeditious resolutio[n]" of employment disputes. Zimmerman Brush Co. v. Fair Employment Practices Comm'n, 82 Ill.2d 99, 107, 44 Ill.Dec. 308, 313, 411 N.E.2d 277, 282 (1980). Insofar as the court meant to suggest that a factfinding conference may help settle controversies and frame issues for a more efficient future resolution, it was undoubtedly correct. But I cannot agree that terminating a claim that the State itself has misscheduled is a rational way of expediting the resolution of disputes.3 45 Most important, the procedure at issue does not serve generally to hasten the processing or ultimate termination of employment controversies. Once the Commission has scheduled a factfinding conference and issued a complaint, there are no statutory time limits at all on the length of time it can take to resolve the claim. And ¶ 858(b) does not serve to protect employers from stale charges, because it does not function as a statute of limitation; Logan does not and could not quarrel with the requirement that complainants file their charges in a timely fashion. 46 It is true, of course, that ¶ 858(b) serves to expedite the resolution of certain claims—those not processed within 120 days in a most obvious way, and in that sense it furthers the purpose of terminating disputes expeditiously. But it is not enough, under the Equal Protection Clause, to say that the legislature sought to terminate certain claims and succeeded in doing so, for that is "a mere tautological recognition of the fact that [the legislature] did what it intended to do." U. S. Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 180, 101 S.Ct. 453, 461, 66 L.Ed.2d 368 (1980) (STEVENS, J., concurring in judgment). This Court still has an obligation to view the classificatory system, in an effort to determine whether the disparate treatment accorded the affected classes is arbitrary. Rinaldi v. Yeager, 384 U.S., at 308, 86 S.Ct., at 1499 ("The Equal Protection Clause requires more of a state law than nondiscriminatory application within the class it establishes"). Cf. U. S. Railroad Retirement Bd. v. Fritz, 449 U.S., at 178, 101 S.Ct., at 460. 47 Here, that inquiry yields an affirmative result. So far as the State's purpose is concerned, every FEPA claimant's charge, when filed with the Commission, stands on the same footing. Yet certain randomly selected claims, because processed too slowly by the State, are irrevocably terminated without review. In other words, the State converts similarly situated claims into dissimilarly situated ones, and then uses this distinction as the basis for its classification. This, I believe, is the very essence of arbitrary state action. "[T]he Equal Protection Clause 'imposes a requirement of some rationality in the nature of the class singled out,' " James v. Strange, 407 U.S. 128, 140, 92 S.Ct. 2027, 2034, 32 L.Ed.2d 600 (1972), quoting Rinaldi, 384 U.S., at 308-309, 86 S.Ct., at 1499-1500, and that rationality is absent here. The Court faced an analogous situation in a case involving sex-based classifications, and its conclusion there is applicable to the case before us now: giving preference to a discrete class "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). 48 Finally, it is possible that the Illinois Supreme Court meant to suggest that the deadline contained in ¶ 858(b) can be justified as a means of thinning out the Commission's caseload, with the aim of encouraging the Commission to convene timely hearings. This rationale, however, suffers from the defect outlined above: it draws an arbitrary line between otherwise identical claims. In any event, the State's method of furthering this purpose—if this was in fact the legislative end—has so speculative and attenuated a connection to its goal as to amount to arbitrary action. The State's rationale must be something more than the exercise of a strained imagination; while the connection between means and ends need not be precise, it, at the least, must have some objective basis. That is not so here. 49 I thus agree with appellant Logan that the Illinois scheme also deprives him of his Fourteenth Amendment right to the equal protection of the laws. 50 Justice POWELL, with whom Justice REHNQUIST joins, concurring in the judgment. 51 As the challenged statute now has been amended, this is a case of little importance except to the litigants. The action commenced with an isolated example of bureaucratic oversight that resulted in the denial even of a hearing on appellant's claim of discrimination. One would have expected this sort of negligence by the State to toll the statutory period within which a hearing must be held. The Supreme Court of Illinois, however, read the statutory terms as mandatory and jurisdictional. 52 The issue presented, at least for me, is too simple and straightforward to justify broad pronouncements on the law of procedural due process or of equal protection. I am particularly concerned by the potential implications of the Court's expansive due process analysis. In my view this is a case that should be decided narrowly on its unusual facts.* 53 The decision of the Illinois Supreme Court effectively created two classes of claimants: those whose claims were, and those whose claims were not, processed within the prescribed 120 days by the Illinois Fair Employment Practices Commission. Under this classification, claimants with identical claims, despite equal diligence in presenting them, would be treated differently, depending on whether the Commission itself neglected to convene a hearing within the prescribed time. The question is whether this unusual classification is rationally related to a state interest that would justify it. 54 The State no doubt has an interest in the timely disposition of claims. But the challenged classification failed to promote that end—or indeed any other—in a rational way. As claimants possessed no power to convene hearings, it is unfair and irrational to punish them for the Commission's failure to do so. The State also has asserted goals of redressing valid claims of discrimination and of protecting employers from frivolous lawsuits. Yet the challenged classification, which bore no relationship to the merits of the underlying charges, is arbitrary and irrational when measured against either purpose. 55 This Court has held repeatedly that state-created classifications must bear a rational relationship to legitimate governmental objectives. See, e.g., Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 1080, 67 L.Ed.2d 186 (1981); Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972). Although I do not join JUSTICE BLACKMUN's separate opinion, I agree that the challenged statute, as construed and applied in this case, failed to comport with this minimal standard. I am concerned by the broad sweep of the Court's opinion, but I do join its judgment. * Justice O'Connor joins only the separate opinion, post, p. 438. 1 After the inception of the present litigation, the Illinois Legislature repealed the FEPA, and put in its place the more comprehensive Illinois Human Rights Act. 1979 Ill.Laws, P.A. 81-1216, later amended by 1980 Ill.Laws, P.A. 81-1267. The new statute bars discrimination in real estate and financial transactions and in public accommodations, as well as in employment. It replaces the Fair Employment Practices Commission with two agencies: a Department of Human Rights, ¶ 7-101 et seq., which is given the responsibility for investigating charges and issuing complaints upon a finding of substantial evidence, and a Human Rights Commission, ¶ 8-101 et seq., which reviews the Department's findings and holds hearings upon issued complaints. The new Act modifies a number of the FEPA's procedural provisions; most important for present purposes, it commits to the Department's discretion the decision whether to hold a factfinding conference. ¶ 7-102(C)(3). These revisions have no effect on Logan's case, however, for the Illinois Supreme Court has ruled that the Human Rights Act is not to be applied retroactively. Zimmerman Brush Co. v. Fair Employment Practices Comm'n, 82 Ill.2d 99, 108-109, 44 Ill.Dec. 308, 313-314, 411 N.E.2d 277, 282-283 (1980). 2 See also Board of Governors v. Fair Employment Practices Comm'n, 78 Ill.2d 143, 149, 35 Ill.Dec. 524, 527, 399 N.E.2d 590, 593 (1979); Wilson v. All-Steel, Inc., 87 Ill.2d 28, 56 Ill.Dec. 897, 428 N.E.2d 489 (1981). 3 The Illinois court also refused to give retroactive application to the new Illinois Human Rights Act, which makes the convening of a factfinding conference discretionary. 82 Ill.2d, at 108-109, 44 Ill.Dec., at 313-314, 411 N.E.2d, at 282-283. See n.1, supra. 4 Two years ago, in Martinez v. California, 444 U.S. 277, 281-282, 100 S.Ct. 553, 556-557, 62 L.Ed.2d 481 (1980), the Court noted that "[a]rguably," a state tort claim is a "species of 'property' protected by the Due Process Clause." 5 The Court's cases involving the right of access to courts provide an analogous method of analysis supporting our reasoning here. In Boddie, the Court established that, at least where interests of basic importance are involved, "absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard." 401 U.S., at 377, 91 S.Ct., at 785. Thus, the State's imposition of substantial filing and other fees upon indigents seeking divorces was held to deny them due process. In United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973), we agreed that a due process right of access to the courts exists when fundamental interests are present and the State has exclusive control over "the adjustment of [the] legal relationship[s]" involved. Id., at 445, 93 S.Ct., at 637. The relationship between these opinions and the right to procedural due process at issue in the instant case is made clear in Boddie, which relied in large part on the analysis of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), and its guarantee "to all individuals [of] a meaningful opportunity to be heard." Boddie, 401 U.S., at 379, 91 S.Ct., at 786; see also id., at 377-378, 380, 382, 91 S.Ct., at 785-786, 787, 788. Thus, while the right to seek a divorce may not be a property interest in the same sense as is a tort or a discrimination action, the theories of the cases are not very different: having made access to the courts an entitlement or a necessity, the State may not deprive someone of that access unless the balance of state and private interests favors the government scheme. 6 An FEPA claim is therefore distinguishable from an enforcement action like those conducted by the National Labor Relations Board pursuant to the National Labor Relations Act, 29 U.S.C. § 151 et seq. In such a proceeding, the prosecution is controlled by the NLRB's General Counsel, and the Counsel's refusal to issue a complaint is generally not reviewable either by the Board or by the courts. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138-139, 95 S.Ct. 1504, 1510-1511, 44 L.Ed.2d 29 (1975). 7 This is not to suggest, of course, that the State must consider the merits of the claim when the claimant fails to comply with a reasonable procedural requirement, or fails to file a timely charge. See infra, at 437. 8 Here, of course, we are not concerned with the timing of the required review on the merits. The Commission must consider the merits before the case may proceed; it is not meaningful to discuss the possibility of a post-termination hearing, because the property interest here is destroyed when the case is terminated. 9 Logan might also have a remedy under the Equal Opportunities for the Handicapped Act (EOHA), Ill.Rev.Stat., ch. 38, ¶ 65-21 et seq. (1979), which provided an action for damages and "other relief" to those discriminated against on the basis of physical handicap. ¶ 65-29. While the EOHA also was repealed when the Illinois Human Rights Act was passed, see n.1, supra, the latter statute does not disturb claims arising or accruing under the EOHA prior to July 1, 1980. ¶ 9-102(B)(2). It is not clear to us, however, that such an action is available to Logan; the Illinois Supreme Court concluded that allowing Logan to file a second FEPA claim would frustrate the design of the FEPA by prejudicing the employer's rights, 82 Ill.2d, at 109, 44 Ill.Dec., at 314, 411 N.E.2d, at 283, and it might well apply a similar analysis to bar an EOHA claim here. We would hesitate to remit Logan to so speculative a remedy. In any event, our conclusion about the inadequacy of any post-termination remedy here makes the availability of an EOHA suit irrelevant for present purposes. 10 In Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), the Court concluded that state tort remedies provided adequate process for students subjected to corporal punishment in school. In doing so, however, the Court emphasized that the state scheme "preserved what 'has always been the law of the land,' " id., at 679, 97 S.Ct., at 1416, quoting United States v. Barnett, 376 U.S. 681, 692, 84 S.Ct. 984, 990, 12 L.Ed.2d 23 (1964), and that adding additional safeguards would be unduly burdensome. 430 U.S., at 680-682, 97 S.Ct., at 1417-1418. Here, neither of those rationales is available. Terminating potentially meritorious claims in a random manner is hardly a practice in line with our common-law traditions. And the State's abandonment of the challenged practice makes it difficult to argue that requiring a determination on the merits will impose undue burdens on the state administrative process. 1 "It cannot be suggested that in cases where the author [in writing by assignment] is the mere instrument of the Court he must forego expression of his own convictions." Wheeling Steel Corp. v. Glander, 337 U.S. 562, 576, 69 S.Ct. 1291, 1299, 93 L.Ed. 1544 (1949) (separate opinion). See also Abbate v. United States, 359 U.S. 187, 196, 79 S.Ct. 666, 671, 3 L.Ed.2d 729 (1959) (separate opinion); Helvering v. Davis, 301 U.S. 619, 639-640, 57 S.Ct. 904, 908, 81 L.Ed. 1307 (1937). 2 "Members of the Court continue to hold divergent views on the clarity with which a legislative purpose must appear . . . and about the degree of deference afforded the legislature in suiting means to ends. . . ." Schweiker v. Wilson, 450 U.S. 221, 243 n.4, 101 S.Ct. 1074, 1087 n.4, 67 L.Ed.2d 186 (1981) (dissenting opinion). 3 The Illinois court concluded that the factfinding conference itself would help to resolve disputes expeditiously by encouraging settlement and "aid[ing] the Commission in setting up a procedural framework for the conciliatory process which follows." 82 Ill.2d, at 106, 44 Ill.Dec., at 212, 411 N.E.2d, at 281. It is less clear to me that the court viewed the practice of terminating misscheduled claims as one that would aid the just and expeditious resolution of controversies. In light of my conclusions about the rationality of such a justification, however, it is irrelevant whether the Illinois Supreme Court intended to state that this was the actual or articulated rationale for ¶ 858(b)'s deadline proviso. I note that the rationales discussed in the text have not been expressed by the State's representatives; the Illinois Human Rights Commission, by the State's Attorney General, has filed a brief in this Court supporting Logan. * It is necessary for this Court to decide cases during almost every Term on due process and equal protection grounds. Our opinions in these areas often are criticized, with justice, as lacking consistency and clarity. Because these issues arise in varied settings, and opinions are written by each of nine Justices, consistency of language is an ideal unlikely to be achieved. Yet I suppose we would all agree—at least in theory that unnecessarily broad statements of doctrine frequently do more to confuse than to clarify our jurisprudence. I have not always adhered to this counsel of restraint in my own opinion writing, and therefore imply no criticism of others. But it does seem to me that this is a case that requires a minimum of exposition.

34

455 U.S. 363 102 S.Ct. 1114 71 L.Ed.2d 214 HAVENS REALTY CORPORATION, et al., Petitioners,v.Sylvia COLEMAN, et al. No. 80-988. Argued Dec. 1, 1981. Decided Feb. 24, 1982. Syllabus Section 804 of the Fair Housing Act of 1968 (Act) makes unlawful various forms of discriminatory housing practices. Section 812(a) authorizes civil actions to enforce § 804 and requires that suit be brought within 180 days after the alleged occurrence of a discriminatory practice. A class action for declaratory, injunctive, and monetary relief was brought in Federal District Court against petitioners—Havens Realty Corp. (Havens), an apartment complex owner in a suburb of Richmond, Va., and one of its employees—on the basis of their alleged "racial steering" in violation of § 804. The suit was brought by a black person (Coles) who, attempting to rent an apartment from Havens, allegedly was falsely told less than 180 days before suit was instituted that no apartments were available, and by respondents Housing Opportunities Made Equal (HOME), a nonprofit corporation whose purpose was "to make equal opportunity in housing a reality in the Richmond Metropolitan Area," and two individuals (one black and one white) who were employed by HOME as "testers" to determine whether Havens practiced racial steering. The complaint alleged that on specified dates more than 180 days before suit was instituted, the black tester was told by Havens that no apartments were available, but the white tester was told that there were vacancies. It was also alleged that Havens' practices had deprived the individual plaintiffs (who were residents of Richmond or the adjacent county) of the "important social, professional, business and economic, political and aesthetic benefits of interracial associations that arise from living in integrated communities free from discriminatory housing practices"; that Havens' steering practices had frustrated HOME's activities as to housing counseling and referral services, with a consequent drain on resources; and that its members had been deprived of the benefits of interracial association arising from living in an integrated community free of housing discrimination. On petitioners' pretrial motion, the District court dismissed respondents' claims, holding that they lacked standing and that their claims were barred by the Act's 180-day statute of limitations. The Court of Appeals reversed and remanded. It held that the allegations of injury to the respondents were sufficient to withstand a motion to dismiss, and that their claims were not time-barred because petitioners' conduct constituted a "continuing violation" lasting through the time of the alleged Coles incident, which was within the 180-day period of § 812(a). Held: 1. Respondents' claims were not rendered moot by either (1) the District Court's entry of a consent order with respect to Coles' claims granting him and the class he represented monetary and injunctive relief, the order having been entered after a trial in which Havens was found to have engaged in unlawful racial steering, or (2) a letter agreement between petitioners and respondents—reached prior to this Court's grant of certiorari whereby, upon approval by the District Court, respondents would each be entitled to $400 in damages and no further relief if this Court were either to deny certiorari or to grant it and affirm, but to no relief if this Court were to grant certiorari and reverse. Irrespective of the issue of injunctive relief, respondents continue to seek damages to redress alleged violations of the Act. The letter agreement would merely liquidate those damages. Pp. 370-371. 2. The determination of whether each of the respondents has standing to sue is guided by the decision in Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 60 L.Ed.2d 66, that Congress intended standing under § 812 of the Act to extend to the full limits of Art. III and that the courts accordingly lack authority to create prudential barriers to standing in suits brought under that section. Thus the sole requirement for standing to sue under § 812 is the Art. III minima of injury in fact—that the plaintiff allege that as a result of the defendant's actions he has suffered "a distinct and palpable injury." Pp. 372-379. (a) The black individual respondent (Coleman) has standing to sue in her capacity as a "tester." Section 804(d) establishes an enforceable right of "any person" to truthful information concerning the availability of housing. A tester who has been the object of a misrepresentation made unlawful under § 804(d) has suffered injury in precisely the form the statute was intended to guard against, and therefore has standing to maintain a damages claim under the Act. That the tester may have approached the real estate agent fully expecting that he would receive false information, and without any intention of buying or renting a home, does not negate the fact of injury within the meaning of § 804(d). If, as alleged, Coleman was told that apartments were not available while white testers were informed that apartments were available, she has suffered "specific injury" from petitioners' challenged acts, and the Art. III requirement of injury in fact is satisfied. However, since the white individual respondent (Willis) alleged that he was informed that apartmentswere available, rather than that petitioners misrepresented to him that apartments were unavailable, thus alleging no injury to his statutory right to accurate information, he has no standing to sue in his capacity as a tester and, more to the point, has not pleaded a cause of action under § 804(d). Pp. 373-375. (b) Insofar as Coleman and Willis have alleged that the steering practices of petitioners have deprived the two respondents of the benefits of interracial association, the Court of Appeals properly held that dismissal was inappropriate at this juncture in the proceedings. It is implausible to argue that petitioners' alleged acts of discrimination could have palpable effects throughout the entire Richmond metropolitan area. But respondents have not identified the particular neighborhoods in which they lived, nor established the proximity of their homes to the site of petitioners' alleged steering practices. In the absence of further factual development, it cannot be said as a matter of law that no injury could be proved. Further pleading and proof might establish that the respondents lived in areas where petitioners' practices had an appreciable effect. Pp. 375-378. (c) Although HOME apparently has abandoned its claim of standing to sue for injunctive relief as a representative of its members, it has standing to sue for damages in its own right under the Act. If, as broadly alleged, petitioners' steering practices have perceptibly impaired HOME's ability to provide housing counseling and referral services—with a consequent drain on the organization's resources—there can be no question that the organization has suffered the requisite injury in fact. Pp. 378-379. 3. The 180-day limitations period of § 812(a) of the Act is no bar to the "neighborhood" claims of the individual respondents or to HOME's claim for injury to its counseling and referral services, even though the alleged incidents of racial steering involving Coleman and Willis occurred more than 180 days before suit was filed. Where a plaintiff, pursuant to the Act, challenges not just one incident of conduct violative of the Act, but an unlawful practice that continues into the limitations period, the complaint is timely when it is filed within 180 days of the last asserted occurrence of that practice. Here, the individual respondents' "neighborhood" claims and HOME's claim are based not solely on isolated incidents involving the two individual respondents but on a continuing violation manifested in a number of incidents—including at least one (involving Coles) that is asserted to have occurred within the 180-day period. However, insofar as Coleman has standing to assert a claim as a "tester," she may not take advantage of the "continuing violation" theory, and such claim is time barred. It is not alleged, nor could it be, that the incident of steering involving Coles deprived Coleman of her § 804(d) right to truthful housing information. Pp. 380-381. 633 F.2d 384 (4th Cir. 1980), affirmed in part and reversed in part. Everette G. Allen, Jr., Richmond, Va., for petitioners. Vanessa Ruiz, Washington, D. C., for respondents. JUSTICE BRENNAN delivered the opinion of the Court. 1 This case presents questions concerning the scope of standing to sue under the Fair Housing Act of 1968 and the proper construction of § 812(a) of the Act, which requires that a civil suit be brought within 180 days after the alleged occurrence of a discriminatory practice. 2 * The case began as a class action against Havens Realty Corp. (Havens) and one of its employees, Rose Jones. Defendants were alleged to have engaged in "racial steering"1 violative of § 804 of the Fair Housing Act of 1968, 42 U.S.C. § 3604 (Act or Fair Housing Act).2 The complaint, seeking declaratory, injunctive, and monetary relief, was filed in the United States District Court for the Eastern District of Virginia in January 1979 by three individuals3—Paul Coles, Sylvia Coleman, and R. Kent Willis—and an organization—Housing Opportunities Made Equal (HOME). 3 At the time suit was brought, defendant Havens owned and operated two apartment complexes, Camelot Townhouses and Colonial Court Apartments, in Henrico County, Va., a suburb of Richmond. The complaint identified Paul Coles as a black "renter plaintiff' who, attempting to rent an apartment from Havens, inquired on July 13, 1978, about the availability of an apartment at the Camelot complex, and was falsely told that no apartments were available. App. 13, ¶ 7; id., at 15, ¶ 12.4 The other two individual plaintiffs, Coleman and Willis, were described in the complaint as "tester plaintiffs" who were employed by HOME to determine whether Havens practiced racial steering. Id., at 13, ¶ 7. Coleman, who is black, and Willis, who is white, each assertedly made inquiries of Havens on March 14, March 21, and March 23, 1978, regarding the availability of apartments. On each occasion, Coleman was told that no apartments were available; Willis was told that there were vacancies. On July 6, 1978, Coleman made a further inquiry and was told that there were no vacancies in the Camelot Townhouses; a white tester for HOME, who was not a party to the complaint, was given contrary information that same day. Id., at 16, ¶ 13. 4 The complaint identified HOME as "a nonprofit corporation organized under the laws of the State of Virginia" whose purpose was "to make equal opportunity in housing a reality in the Richmond Metropolitan Area." Id., at 13, ¶ 8. According to the complaint, HOME's membership was "multi-racial and include[d] approximately 600 individuals." Ibid. Its activities included the operation of a housing counseling service, and the investigation and referral of complaints concerning housing discrimination. Id., at 14, &Par; 8a, 8b. 5 The three individual plaintiffs, who at the time the complaint was filed were all residents of the city of Richmond or the adjacent Henrico County, id., at 13, ¶ 7, averred that they had been injured by the discriminatory acts of petitioners. Coles, the black renter, claimed that he had been "denied the right to rent real property in Henrico County." Id., at 17, ¶ 14. Further, he and the two tester plaintiffs alleged that Havens' practices deprived them of the "important social, professional, business and economic, political and aesthetic benefits of interracial associations that arise from living in integrated communities free from discriminatory housing practices." Id., at 17, &Par; 14, 15. And Coleman, the black tester, alleged that the misinformation given her by Havens concerning the availability of apartments in the Colonial Court and Camelot Townhouse complexes had caused her "specific injury." Id., at 16, ¶ 13. 6 HOME also alleged injury. It asserted that the steering practices of Havens had frustrated the organization's counseling and referral services, with a consequent drain on resources. Id., at 17, ¶ 16. Additionally, HOME asserted that its members had been deprived of the benefits of interracial association arising from living in an integrated community free of housing discrimination. Id., at 17-18, ¶ 16. 7 Before discovery was begun, and without any evidence being presented, the District Court, on motion of petitioners, dismissed the claims of Coleman, Willis, and HOME. The District Court held that these plaintiffs lacked standing and that their claims were barred by the Act's 180-day statute of limitations, 42 U.S.C. § 3612(a). App. 33-35.5 Each of the dismissed plaintiffs respondents in this Court—appealed, and the Court of Appeals for the Fourth Circuit reversed and remanded for further proceedings. Coles v. Ha- vens Realty Corp., 633 F.2d 384 (1980). The Court of Appeals held that the allegations of injury by Willis and Coleman, both as testers and as individuals who were deprived of the benefits of residing in an integrated community, sufficed to withstand a motion to dismiss.6 With respect to HOME, the Court of Appeals held that the organization's allegations of injury to itself and its members were sufficient, at the pleading stage, to afford the organization standing both in its own capacity and as a representative of its members. The Court of Appeals further held that none of the allegations of racial steering was time-barred, because petitioners' conduct constituted a "continuing violation" lasting through July 13, 1978—less than 180 days before the complaint was filed. We granted certiorari. 451 U.S. 905, 101 S.Ct. 1972, 68 L.Ed.2d 293 (1981). II 8 At the outset, we must consider whether the claims of Coleman, Willis, and HOME have become moot as a result of certain developments occurring after the District Court's dismissal. The first was the District Court's entry of a consent order with respect to Coles' claims. Following the dismissal of respondents' claims, Coles' undismissed claims went to trial, and Havens was found to have engaged in unlawful racial steering.7 Shortly thereafter, at the request of the parties, the court entered a consent order granting Coles and the class he represented monetary and injunctive relief. App. to Brief for Respondents 10a. The second development concerns an agreement reached between petitioners and respondents prior to this Court's grant of certiorari.8 The letter agreement, which expressly provides that it is to become effective only after approval by the District Court, states that if the Court were to deny certiorari, or grant it and affirm, respondents would each be entitled to $400 in damages and no further relief. The agreement provides also that if the Court were to grant certiorari and reverse, respondents would be entitled to no relief whatsoever. 9 Despite these two developments, this case is not moot. Irrespective of the issue of injunctive relief, respondents continue to seek damages to redress alleged violations of the Fair Housing Act.9 The letter agreement, if approved by the District Court, would merely liquidate those damages. If respondents have suffered an injury that is compensable in money damages of some undetermined amount, the fact that they have settled on a measure of damages does not make their claims moot. Given respondents' continued active pursuit of monetary relief, this case remains "definite and concrete, touching the legal relations of parties having adverse legal interests." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241, 57 S.Ct. 461, 463, 81 L.Ed. 617 (1937) (citations omitted). See Powell v. McCormack, 395 U.S. 486, 495-500, 89 S.Ct. 1944, 1950-1952, 23 L.Ed.2d 491 (1969); Bond v. Floyd, 385 U.S. 116, 128, n. 4, 87 S.Ct. 339, 345, n. 4, 17 L.Ed.2d 235 (1966).10 III 10 Our inquiry with respect to the standing issues raised in this case is guided by our decision in Gladstone, Realtors v. village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979). There we considered whether six individuals and the village of Bellwood had standing to sue under § 812 of the Fair Housing Act, 42 U.S.C. § 3612,11 to redress injuries allegedly caused by the racial steering practices of two real estate brokerage firms. Based on the complaints, "as illuminated by subsequent discovery," 441 U.S., at 95, 99 S.Ct., at 1605, we concluded that the village and four of the individual plaintiffs did have standing to sue under the Fair Housing Act, id., at 111, 115, 99 S.Ct., at 1613, 1615.12 In reaching that conclusion, we held that "Congress intended standing under § 812 to extend to the full limits of Art. III" and that the courts accordingly lack the authority to create prudential barriers to standing in suits brought under that section. Id., at 103, n. 9, 109, 99 S.Ct., at 1609, n. 9, 1612. Thus the sole requirement for standing to sue under § 812 is the Art. III minima of injury in fact: that the plaintiff allege that as a result of the defendant's actions he has suffered "a distinct and palpable injury," Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). With this understanding, we proceed to determine whether each of the respondents in the present case has the requisite standing. 11 The Court of Appeals held that Coleman and Willis have standing to sue in two capacities: as "testers" and as individuals deprived of the benefits of interracial association. We first address the question of "tester" standing. 12 In the present context, "testers" are individuals who, without an intent to rent or purchase a home or apartment, pose as renters or purchasers for the purpose of collecting evidence of unlawful steering practices. Section 804(d) states that it is unlawful for an individual or firm covered by the Act "[t]o represent to any person because of race, color, religion, sex, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available," 42 U.S.C. § 3604(d) (emphasis added), a prohibition made enforceable through the creation of an explicit cause of action in § 812(a) of the Act, 42 U.S.C. § 3612(a). Congress has thus conferred on all "persons" a legal right to truthful information about available housing. 13 This congressional intention cannot be overlooked in determining whether testers have standing to sue. As we have previously recognized, "[t]he actual or threatened injury required by Art. III may exist solely by virtue of 'statutes creating legal rights, the invasion of which creates standing. . . .' " Warth v. Seldin, supra, at 500, 95 S.Ct., at 2205, quoting Linda R.S. v. Richard D., 410 U.S. 614, 617, n. 3, 93 S.Ct. 1146, 1148, n. 3, 35 L.Ed.2d 536 (1973). Accord, Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972); Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 212, 93 S.Ct. 364, 368, 34 L.Ed.2d 415 (1972) (WHITE, J., concurring). Section 804(d), which, in terms, establishes an enforceable right to truthful information concerning the availability of housing, is such an enactment. A tester who has been the object of a misrepresentation made unlawful under § 804(d) has suffered injury in precisely the form the statute was intended to guard against, and therefore has standing to maintain a claim for damages under the Act's provisions. That the tester may have approached the real estate agent fully expecting that he would receive false information, and without any intention of buying or renting a home, does not negate the simple fact of injury within the meaning of § 804(d). See Pierson v. Ray, 386 U.S. 547, 558, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967); Evers v. Dwyer, 358 U.S. 202, 204, 79 S.Ct. 178, 179, 3 L.Ed.2d 222 (1958) (per curiam ). Whereas Congress, in prohibiting discriminatory refusals to sell or rent in § 804(a) of the Act, 42 U.S.C. § 3604(a),13 required that there be a "bona fide offer" to rent or purchase, Congress plainly omitted any such requirement insofar as it banned discriminatory representations in § 804(d).14 14 In the instant case, respondent Coleman—the black tester alleged injury to her statutorily created right to truthful housing information. As part of the complaint, she averred that petitioners told her on four different occasions that apartments were not available in the Henrico County complexes while informing white testers that apartments were available. If the facts are as alleged, then respondent has suffered "specific injury" from the challenged acts of petitioners, see App. 16, ¶ 13, and the Art. III requirement of injury in fact is satisfied. 15 Respondent Willis' situation is different. He made no allegation that petitioners misrepresented to him that apartments were unavailable in the two apartment complexes. To the contrary, Willis alleged that on each occasion that he inquired he was informed that apartments were available. As such, Willis has alleged no injury to his statutory right to accurate information concerning the availability of housing. We thus discern no support for the Court of Appeals' holding that Willis has standing to sue in his capacity as a tester.15 More to the point, because Willis does not allege that he was a victim of a discriminatory misrepresentation, he has not pleaded a cause of action under § 804(d). We must therefore reverse the Court of Appeals' judgment insofar as it reversed the District Court's dismissal of Willis' "tester" claims. B 16 Coleman and Willis argue in this Court, and the Court of Appeals held, that irrespective of their status as testers, they should have been allowed to proceed beyond the pleading stage inasmuch as they have alleged that petitioners' steering practices deprived them of the benefits that result from living in an integrated community. This concept of "neighborhood" standing differs from that of "tester" standing in that the injury asserted is an indirect one: an adverse impact on the neighborhood in which the plaintiff resides resulting from the steering of persons other than the plaintiff. By contrast, the injury underlying tester standing—the denial of the tester's own statutory right to truthful housing information caused by misrepresentations to the tester—is a direct one. See Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 80-81, 98 S.Ct. 2620, 2634, 57 L.Ed.2d 595 (1978). The distinction is between "third-party" and "first-party" standing. 17 This distinction is, however, of little significance in deciding whether a plaintiff has standing to sue under § 812 of the Fair Housing Act. Bellwood, as we have already noted, held that the only requirement for standing to sue under § 812 is the Art. III requirement of injury in fact. As long as respondents have alleged distinct and palpable injuries that are "fairly traceable" to petitioners' actions, the Art. III requirement of injury in fact is satisfied. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977). The question before us, then, is whether injury in fact has been sufficiently alleged.16 18 The two individual respondents, who according to the complaint were "residents of the City of Richmond or Henrico County," alleged that the racial steering practices of petitioners have deprived them of "the right to the important social, professional, business and economic, political and aesthetic benefits of interracial associations that arise from living in integrated communities free from discriminatory housing practices." App. 13, ¶ 7; id., at 17, &Par; 14, 15. The type of injury alleged thus clearly resembles that which we found palpable in Bellwood. In that case, plaintiffs alleged that the steering practices of the defendants, by transforming their neighborhood in Bellwood from an integrated into an almost entirely black environment, had deprived them of "the social and professional benefits of living in an integrated society" and had caused them "economic injury." 441 U.S., at 111, 115, and n. 30, 99 S.Ct., at 1613, 1615, and n. 30.17 19 Petitioners do not dispute that the loss of social, professional, and economic benefits resulting from steering practices constitutes palpable injury. Instead, they contend that Coleman and Willis, by pleading simply that they were residents of the Richmond metropolitan area, have failed to demonstrate how the asserted steering practices of petitioners in Henrico County may have affected the particular neighborhoods in which the individual respondents resided. 20 It is indeed implausible to argue that petitioners' alleged acts of discrimination could have palpable effects throughout the entire Richmond metropolitan area. At the time relevant to this action the city of Richmond contained a population of nearly 220,000 persons, dispersed over 37 square miles. Henrico County occupied more than 232 square miles, in which roughly 170,000 people made their homes.18 Our cases have upheld standing based on the effects of discrimination only within a "relatively compact neighborhood," Bellwood, 441 U.S., at 114, 99 S.Ct., at 1615. We have not suggested that discrimination within a single housing complex might give rise to "distinct and palpable injury," Warth v. Seldin, 422 U.S., at 501, 95 S.Ct., at 2206, throughout a metropolitan area. 21 Nonetheless, in the absence of further factual development, we cannot say as a matter of law that no injury could be proved. Respondents have not identified the particular neighborhoods in which they lived, nor established the proximity of their homes to the site of petitioners' alleged steering practices. Further pleading and proof might establish that they lived in areas where petitioners' practices had an appreciable effect. Under the liberal federal pleading standards, we therefore agree with the Court of Appeals that dismissal on the pleadings is inappropriate at this stage of the litigation. At the same time, we note that the extreme generality of the complaint makes it impossible to say that respondents have made factual averments sufficient if true to demonstrate injury in fact. Accordingly, on remand, the District Court should afford the plaintiffs an opportunity to make more definite the allegations of the complaint. Cf. Fed.Rule Civ.Proc. 12(e). If after that opportunity the pleadings fail to make averments that meet the standing requirements established by the decisions of this Court, the claims should be dismissed. C 22 HOME brought suit against petitioners both as a representative of its members and on its own behalf. In its representative capacity, HOME sought only injunctive relief. See App. 17, ¶ 16; id., at 18-20, ¶ 18. Under the terms of the letter settlement reached between petitioners and respondents, however, HOME has agreed to abandon its request for injunctive relief in the event the District Court ultimately approves the settlement. Supra, at 370-371, and n. 10. Additionally, in its brief in this Court, HOME suggests that we need not decide whether the organization has standing in its representative capacity. Brief for Respondents 8, n. 8; id., at 39 n. 35. In view of HOME's apparent willingness to abandon this claim, we think it inappropriate that the Court use its resources to resolve an issue for which "such small embers of controversy . . . remain." Taggart v. Weinacker's, Inc., 397 U.S. 223, 225, 90 S.Ct. 876, 877, 25 L.Ed.2d 240 (1970) (per curiam ). While we therefore will not decide the question involving HOME's representative standing, we do proceed to decide the question whether HOME has standing in its own right; the organization continues to press a right to claim damages in that latter capacity. 23 In determining whether HOME has standing under the Fair Housing Act, we conduct the same inquiry as in the case of an individual: Has the plaintiff " 'alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction"? Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S., at 261, 97 S.Ct., at 561 (emphasis omitted), quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).19 In the instant case, HOME's complaint contained the following claims of injury to the organization: 24 "Plaintiff HOME has been frustrated by defendants' racial steering practices in its efforts to assist equal access to housing through counseling and other referral services. Plaintiff HOME has had to devote significant resources to identify and counteract the defendant's [sic ] racially discriminatory steering practices." App. 17, ¶ 16. 25 If, as broadly alleged, petitioners' steering practices have perceptibly impaired HOME's ability to provide counseling and referral services for low- and moderate-income homeseekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization's activities—with the consequent drain on the organization's resources—constitutes far more than simply a setback to the organization's abstract social interests, see Sierra Club v. Morton, 405 U.S., at 739, 92 S.Ct., at 1368.20 We therefore conclude, as did the Court of Appeals, that in view of HOME's allegations of injury it was improper for the District Court to dismiss for lack of standing the claims of the organization in its own right.21 IV 26 Petitioners argue that even if respondents do have standing to sue under the Fair Housing Act, their claims are time-barred under § 812(a) of the Fair Housing Act, 42 U.S.C. § 3612(a). That section requires that a civil suit be brought within 180 days after the alleged occurrence of a discriminatory housing practice.22 As petitioners note, although five different specific incidents allegedly in violation of the Fair Housing Act are detailed in the complaint, the four involving Coleman occurred more than 180 days before the complaint was filed, and the fifth, which was within 180 days of filing, involved only Coles, whose claims are already the subject of a consent order entered by the District Court. The Court of Appeals, adopting a "continuing violation" theory, held that because the Coles incident fell within the limitations period, none of the claims was barred. 27 We agree with the Court of Appeals that for purposes of § 812(a), a "continuing violation" of the Fair Housing Act should be treated differently from one discrete act of discrimination. Statutes of limitations such as that contained in § 812(a) are intended to keep stale claims out of the courts. See Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628 (1945). Where the challenged violation is a continuing one, the staleness concern disappears. Petitioners' wooden application of § 812(a), which ignores the continuing nature of the alleged violation, only undermines the broad remedial intent of Congress embodied in the Act, see Jones v. Alfred H. Mayer Co., 392 U.S. 409, 417, 88 S.Ct. 2186, 2191, 20 L.Ed.2d 1189 (1968). Cf. Zipes v. Trans World Airlines, Inc., 455 U.S. 398, 102 S.Ct. 1127, 71 L.Ed.2d 234. Like the Court of Appeals, we therefore conclude that where a plaintiff, pursuant to the Fair Housing Act, challenges not just one incident of conduct violative of the Act, but an unlawful practice23 that continues into the limitations period, the complaint is timely when it is filed within 180 days of the last asserted occurrence of that practice. 28 Applying this principle to the "neighborhood" claims of Coleman and Willis, we agree with the Court of Appeals that the 180-day statute of limitations is no bar. Willis and Coleman have alleged that petitioners' continuing pattern, practice, and policy of unlawful racial steering has deprived them of the benefits of interracial association arising from living in an integrated neighborhood. Plainly the claims, as currently alleged, are based not solely on isolated incidents involving the two respondents, but a continuing violation manifested in a number of incidents including at least one (involving Coles) that is asserted to have occurred within the 180-day period. HOME, too, claims injury to its counseling and referral services not only from the incidents involving Coleman and Willis, but also from a continuing policy and practice of unlawful racial steering that extends through the last alleged incident. We do not agree with the Court of Appeals, however, that insofar as respondent Coleman has standing to assert a claim as a "tester," she may take advantage of the "continuing violation" theory. Her tester claim is, in essence, that on four isolated occasions she received false information from petitioners in violation of § 804(d). It is not alleged, nor could it be, that the incident of steering involving Coles on July 13, 1978, deprived Coleman of her § 804(d) right to truthful housing information. See App. 16, ¶ 13. V 29 In sum, we affirm the judgment of the Court of Appeals insofar as the judgment reversed the District Court's dismissal of the claims of Coleman and Willis as individuals allegedly deprived of the benefits of interracial association, and the claims of HOME as an organization allegedly injured by the racial steering practices of petitioners; we reverse the judgment insofar as it directed that Coleman and Willis may proceed to trial on their tester claims. Further proceedings on the remand directed by the Court of Appeals shall be consistent with this opinion. 30 It is so ordered. 31 JUSTICE POWELL, concurring. 32 In claiming standing based on a deprivation of the benefits of an integrated community, the individual respondents alleged generally that they lived in the city of Richmond or in Henrico County. This is an area of roughly 259 square miles, inhabited in 1978 by about 390,000 persons. Accordingly, as the Court holds, it is at best implausible that discrimination within two adjacent apartment complexes could give rise to "distinct and palpable injury," Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), throughout this vast area. See ante, at 377. This, to me, is the constitutional core of the Court's decision. "Distinct and palpable" injury remains the minimal constitutional requirement for standing in a federal court. 33 Although I join the opinion of the Court, I write separately to emphasize my concern that the Art. III requirement of a genuine case or controversy not be deprived of all substance by meaningless pleading. Our prior cases have upheld standing, in cases of this kind, where the effects of discrimination were alleged to have occurred only within "a relatively compact neighborhood." Gladstone, Realtors v. Village of Bellwood, 441 U.S., 91, 114, 99 S.Ct. 1601, 1615, 60 L.Ed.2d 66 (1979). By implication we today reaffirm that limitation. See ante, at 377. I therefore am troubled, not by the opinion of the Court, but by the record on which that opinion is based. After nearly four years of litigation we know only what the individual respondents chose to plead in their complaint—that they live or lived within a territory of 259 square miles, within which petitioners allegedly committed discrete acts of housing discrimination. The allegation would have been equally informative if the area assigned had been the Commonwealth of Virginia. 34 In Warth, supra, at 501-502, 95 S.Ct., at 2206, we noted that a district court properly could deal with a vague averment as to standing by requiring amendment: 35 "[I]t is within the trial court's power to allow or require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff's standing. If, after this opportunity, the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed." 36 The Federal Rules of Civil Procedure also permit a defendant to move for a more definite statement of the claims against him: 37 "If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just." Fed.Rule Civ.Proc. 12(e). 38 See United States v. SCRAP, 412 U.S. 669, 689-690, n. 15, 93 S.Ct. 2405, 2417, n. 15, 37 L.Ed.2d 254 (1973) (Rule 12(e) motion would have been appropriate for defendants confronted with standing allegations "wholly barren of specifics"). 39 In this case neither the District Court nor apparently counsel for the parties took appropriate action to prevent the case from reaching an appellate court with only meaningless averments concerning the disputed question of standing. One can well understand the impatience of the District Court that dismissed the complaint. Yet our cases have established the preconditions to dismissal because of excessive vagueness, e.g., Gladstone, Realtors, supra, at 112-115, 99 S.Ct., at 1614, with regard to standing, and those conditions were not observed. The result is more than a little absurd: Both the Court of Appeals and this Court have been called upon to parse pleadings devoid of any hint of support or nonsupport for an allegation essential to jurisdiction. 40 Liberal pleading rules have both their merit and their price. This is a textbook case of a high price—in terms of a severe imposition on already overburdened federal courts as well as unjustified expense to the litigants. This also is a particularly disturbing example of lax pleading, for it threatens to trivialize what we repeatedly have recognized as a constitutional requirement of Art. III standing. See, e.g., Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472-473, 475-476, 102 S.Ct. 752, 758, 760-761, 70 L.Ed.2d 700 (1982); Warth, supra, at 498, 95 S.Ct., at 2204. 41 In any event, in the context of this case, as it reaches us after some four years of confusing and profitless litigation, it is not within our province to order a dismissal. I therefore join the opinion of the Court. 1 As defined in the complaint, "racial steering" is a "practice by which real estate brokers and agents preserve and encourage patterns of racial segregation in available housing by steering members of racial and ethnic groups to buildings occupied primarily by members of such racial and ethnic groups and away from buildings and neighborhoods inhabited primarily by members of other races or groups." App. 11-12, ¶ 1. 2 Section 804 provides: "As made applicable by section 803 and except as exempted by sections 803(b) and 807, it shall be unlawful— "(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, or national origin. "(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, or national origin. "(c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, or national origin, or an intention to make any such preference, limitation, or discrimination. "(d) To represent to any person because of race, color, religion, sex, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available. "(e) For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, or national origin." 82 Stat. 83, as amended, 88 Stat. 729. The complaint also alleged violation of the Civil Rights Act of 1866, 42 U.S.C. § 1982. Since the judgment of the Court of Appeals did not rest on a violation of § 1982, we have no occasion to consider the applicability of that statute. 3 The individual plaintiffs averred that they were "members of a class composed of all persons who have rented or sought to rent residential property in Henrico County, Virginia, and who have been, or continue to be, adversely affected by the acts, policies and practices of" Havens. App. 12, ¶ 2. 4 According to the complaint, "Camelot Townhouses is an apartment complex predominantly occupied by whites. Coles was informed that no apartments were available in the Camelot complex. He was told that an apartment was available in the adjoining Colonial Court complex. The Colonial complex is integrated." Id., at 15-16, ¶ 12. 5 Coles' claims, however, were not dismissed. Rather, they went to trial following the court's certification of a class, represented by Coles, of individuals injured monetarily on or after January 9, 1977, by the steering practices of petitioners. 6 The court noted that the District Court could require respondents to amend their pleadings to make more specific their allegations, and that if their allegations were "not supported by proof at trial, the case [could] be terminated for lack of standing at an appropriate stage of the trial." 633 F.2d, at 391. 7 The court found that the practices violated both the Fair Housing Act and the Civil Rights Act of 1866, 42 U.S.C. § 1982. That determination is not before us, and we intimate no view as to its correctness. See Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 115, n. 32, 99 S.Ct. 1601, 1615, n. 32, 60 L.Ed.2d 66 (1979). 8 The parties filed the agreement with the Court following oral argument. 9 The consent order involving Coles' claims did establish a fund to provide damages for "claimants." The parties agree, however, that respondents, whose claims were dismissed as time-barred and on standing grounds, cannot claim against the fund. 10 It is true that with respect to the claims of HOME in its representative capacity, the complaint only requested injunctive relief, although of a broader nature than that provided in Coles' consent order. Even as to HOME's representative claims, however, the "stringent" test for mootness, United States v. Phosphate Export Assn., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968), is not satisfied, since the letter agreement, under which HOME agreed not to seek any further injunctive relief and which involves settlement of an uncertified class action, is still subject to the approval of the District Court. For reasons stated infra, at 378, we nevertheless do not reach the question whether HOME has standing in its representative capacity. 11 Section 812 provides in relevant part: "(a) The rights granted by sections 803, 804, 805, and 806 may be enforced by civil actions in appropriate United States district courts without regard to the amount in controversy and in appropriate State or local courts of general jurisdiction." 82 Stat. 88. 12 The Court did hold, however, that on the given record it was appropriate to grant summary judgment against the two remaining individual plaintiffs, neither of whom resided within the area alleged to have been adversely affected by the steering practices of the defendants. 441 U.S., at 112, n. 25, 99 S.Ct., at 1614 n. 25. But the Court left the District Court free to permit these two individuals "to amend their complaints to include allegations of actual harm." Id., at 113, n. 25, 99 S.Ct., at 1614 n. 25. 13 For the terms of § 804(a), see n. 2, supra. 14 Congress' decision to confer a broad right of truthful information concerning housing availability was undoubtedly influenced by congressional awareness that the intentional provision of misinformation offered a means of maintaining segregated housing. Various witnesses testifying before Congress recounted incidents in which black persons who sought housing were falsely informed that housing was not available. See Hearings on S. 1358, S. 2114, and S. 2280 before the Subcommittee on Housing and Urban Affairs of the Senate Committee on Banking and Currency, 90th Cong., 1st Sess., 99 (1967) (testimony of Roy Wilkins); id., at 204, 206 (statement of Gerard A. Ferere); id., at 497 (statement of Whitney M. Young, Jr.). 15 Indeed, respondent Willis made no argument in this Court in defense of this holding and appears to concede its error. 16 "[A]s long as the plaintiff suffers actual injury as a result of the defendant's conduct, he is permitted to prove that the rights of another were infringed. The central issue at this stage of the proceedings is not who possesses the legal rights protected by § 804, but whether respondents were genuinely injured by conduct that violates someone's § 804 rights, and thus are entitled to seek redress of that harm under § 812." Gladstone, Realtors v. Village of Bellwood, 441 U.S., at 103, n. 9, 99 S.Ct., at 1609, n. 9. 17 Similarly, in Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972), on which Bellwood relied, we held that two tenants—one black and one white of an apartment complex had standing to sue under § 810(a) of the Fair Housing Act, 42 U.S.C. § 3610(a), in challenging the alleged racial steering practices of their landlord. The plaintiffs' averments of injury, held sufficient for purposes of standing, were summarized by the Court in the following terms: "(1) they had lost the social benefits of living in an integrated community; (2) they had missed business and professional advantages which would have accrued if they had lived with members of minority groups; (3) they had suffered embarrassment and economic damage in social, business, and professional activities from being 'stigmatized' as residents of a 'white ghetto.' " 409 U.S., at 208, 93 S.Ct., at 366. 18 According to the Court of Appeals, the population of the city of Richmond as of 1978 was 219,883, while that of Henrico County was 172,922. 633 F.2d, at 391, n. 5. 19 We have previously recognized that organizations are entitled to sue on their own behalf for injuries they have sustained. E.g., Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343 ( 1975). 20 That the alleged injury results from the organization's noneconomic interest in encouraging open housing does not effect the nature of the injury suffered, Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 263, 97 S.Ct. 555, 562, 50 L.Ed.2d 450 (1977), and accordingly does not deprive the organization of standing. 21 Of course, HOME will have to demonstrate at trial that it has indeed suffered impairment in its role of facilitating open housing before it will be entitled to judicial relief. 22 The section reads in pertinent part: "A civil action shall be commenced within one hundred and eighty days after the alleged discriminatory housing practice occurred." 23 Petitioners read § 813 of the Act, 42 U.S.C. § 3613, as permitting only the Attorney General to bring a civil suit under the Act challenging a "pattern or practice" of unlawful conduct. We disagree. That section serves only to describe the suits that the Attorney General may bring, and not to limit suits that private parties may bring under § 812. See Fort v. White, 383 F.Supp. 949 (Conn.1974).

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455 U.S. 385 102 S.Ct. 1127 71 L.Ed.2d 234 Anne B. ZIPES, et al., Petitioners,v.TRANS WORLD AIRLINES, INC. INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS, Petitioner, v. TRANS WORLD AIRLINES, INC., et al. Nos. 78-1545, 80-951. Argued Dec. 2, 1981. Decided Feb. 24, 1982. Syllabus In 1970, the union then representing flight attendants employed by respondent Trans World Airlines, Inc. (TWA), brought a federal-court class action alleging that TWA practiced unlawful sex discrimination in violation of Title VII of the Civil Rights Act of 1964 by its policy of grounding all female flight attendants who became mothers while their male counterparts who became fathers were permitted to continue flying. Subsequently, individual members of the class (petitioners in No. 78-1545) were appointed as class representatives to replace the union, which was found to be an inadequate representative. The District Court later denied TWA's motion to exclude class members who had not filed charges with the Equal Employment Opportunity Commission (EEOC) within the time limit specified in Title VII, holding that while such filing requirement is a jurisdictional prerequisite not subject to waiver, any violation by TWA continued against all the class members until TWA changed its challenged policy. The court also granted the plaintiff class' motion for summary judgment on the issue of TWA's liability for violating Title VII. The Court of Appeals affirmed the grant of summary judgment and held that timely filing of EEOC charges was a jurisdictional prerequisite, but declined to extend the "continuing violation" theory so as to include in the plaintiff class those terminated employees who failed to file timely EEOC charges. However, the court stayed its mandate pending the filing of petitions in this Court, which, in turn, deferred consideration of the petitions pending completion of settlement proceedings in the District Court. In such proceedings, the District Court designated two subclasses: Subclass A, consisting of women who were terminated on or after March 20, 1970, and those who were discharged earlier but who had accepted reinstatement in ground positions, and Subclass B, consisting of all other members of the class, whose claims the Court of Appeals had found to be jurisdictionally barred for failure to satisfy the timely-filing requirement. The flight attendants' current union (petitioner in No. 80-951) was permitted to intervene and object to the proposed settlement. On the basis of the Court of Appeals' stay of its mandate in its jurisdictional decision, the District Court rejected the union's challenge to its jurisdiction over Subclass B. It also approved the settlement and awarded restoration of retroactive seniority. The Court of Appeals affirmed, rejecting the union's contention that, because of the Court of Appeals' earlier opinion, the District Court lacked jurisdiction to approve the settlement or to order retroactive seniority with respect to Subclass B. Held : 1. Filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling. The structure of Title VII, the congressional policy underlying it, and the reasoning of this Court's prior cases all lead to this conclusion. Pp. 392-398. 2. The District Court had authority to award retroactive seniority to the members of Subclass B as well as Subclass A. Pp. 398-401. (a) The union's contention in No. 80-951 that there was no finding of discrimination with respect to Subclass B and thus no predicate for relief under § 706(g) of Title VII is without merit. The District Court found unlawful discrimination against the plaintiff class as a whole, at a time when the class had not yet been divided into the two subclasses, and the court's summary judgment ran in favor of the entire class. Since the Court of Appeals erred in ruling that the District Court had no jurisdiction over claims by those who had not met the filing requirement and that those individuals should have been excluded from the class prior to the grant of summary judgment, there was no jurisdictional barrier to the District Court's finding of discrimination with respect to the entire class. Pp. 398-399. (b) Equally meritless is the union's contention that retroactive seniority contrary to the collective-bargaining agreement should not be awarded over the objection of a union that has not itself been found guilty of discrimination. Class-based seniority relief for identifiable victims of illegal discrimination is a form of relief generally appropriate under § 706(g). And, as made clear in Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396, once there has been a finding of discrimination by the employer, an award of retroactive seniority is appropriate even if there is no finding that the union has also illegally discriminated. Pp. 399-400. No. 78-1545, 7th Cir., 582 F.2d 1142, reversed; No. 80-951, 7th Cir., 630 F.2d 1164, affirmed. William A. Jolley, Kansas City, Mo., for petitioner in 80-951. A. Raymond Randolph, Jr., Washington, D. C., Aram A. Hartunian, Arnold I. Shure, Kevin M. Forde, Chicago, Ill., for petitioners in 78-1545. Laurence A. Carton, Chicago, Ill., for respondents. Justice WHITE delivered the opinion of the Court. 1 The primary question in these cases is whether the statutory time limit for filing charges under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. (1970 ed.) is a jurisdictional prerequisite to a suit in the District Court. Secondarily, we resolve a dispute as to whether retroactive seniority was a proper remedy in these Title VII cases. 2 * In 1970, the Air Line Stewards and Stewardesses Association (ALSSA), then the collective-bargaining agent of Trans World Airlines (TWA) flight attendants, brought a class action alleging that TWA practiced unlawful sex discrimination in violation of Title VII by its policy of grounding all female flight cabin attendants who became mothers, while their male counterparts who became fathers were permitted to continue flying. After collective bargaining eliminated the challenged practice prospectively, the parties in the case reached a tentative settlement. The settlement, which provided neither backpay nor retroactive seniority, was approved by the District Court. The Court of Appeals for the Seventh Circuit, however, found the union to be an inadequate representative of the class because of the inherent conflict between the interests of current and former employees. It remanded the case with instructions that the District Court name individual members of the class to replace ALSSA as the class representative.1 Air Line Stewards and Stewardesses Assn. v. American Airlines, Inc., 490 F.2d 636 (1973). 3 Upon remand, petitioners in No. 78-1545 were appointed as class representatives. TWA moved to amend its answer to assert that the claims of plaintiffs and other class members were barred by Title VII's "statute of limitations" because they had failed to file charges with the Equal Employment Opportunity Commission (EEOC) within the statutory time limit. 1 App. 89a.2 Although the District Court granted the motion to amend, it noted that the "delay in pleading the defense of limitations may well ultimately constitute a waiver of the defense." Id., at 101a. 4 Subsequently, on October 15, 1976, the District Court denied TWA's motion to exclude class members who had not filed timely charges with the EEOC. In support of its motion, TWA argued that instead of an affirmative defense analogous to a statute of limitations, timely filing with the EEOC is a jurisdictional prerequisite not subject to waiver by any action of the defendants. While the District Court agreed that the filing requirements of Title VII are jurisdictional, it denied the motion on the basis that any violation by the airline continued against all the class members until the airline changed the challenged policy. Id., at 131a-132a. On October 19, 1976, the District Court granted the motion of the plaintiff class for summary judgment on the issue of TWA's liability for violating Title VII. Id., at 133a-134a. 5 The Court of Appeals affirmed the order of October 18, 1976, granting summary judgment on liability, expressly holding that "TWA's no motherhood policy . . . provides a clear example of sex discrimination prohibited by § 2000e-2(a)." In re Consolidated Pretrial Proceedings in the Airline Cases, 582 F.2d 1142, 1145 (1978). It declined, however, "to extend the continuing violation theory, as did the district court, so as to include in the plaintiff class those employees who were permanently terminated more than 90 days before the filing of EEOC charges." Id., at 1149. 6 The Court of Appeals went on to hold that timely filing of EEOC charges was a jurisdictional prerequisite. Because TWA could not waive the timely-filing requirement, the Court of Appeals found that approximately 92% of the plaintiffs' claims were jurisdictionally barred by the failure of those plaintiffs to have filed charges of discrimination with the EEOC within 90 days of the alleged unlawful employment practice. The Court of Appeals, however, stayed its mandate pending the filing of petitions in this Court. Petitions for certiorari were filed by the plaintiff class, No. 78-1545, and by TWA, No. 78-1549. This Court granted motions to defer consideration of the petitions pending completion of settlement proceedings in the District Court. 442 U.S. 916, 99 S.Ct. 2834, 61 L.Ed.2d 282 (1979). 7 In connection with the settlement proceedings, the District Court designated two subclasses. Subclass A, consisting of some 30 women, comprised those who were terminated on or after March 2, 1970, as well as those who were discharged earlier, but who had accepted reinstatement in ground duty positions. Subclass B, numbering some 400 women, covered all other members of the class and consisted of those whose claims the Court of Appeals had found to be jurisdictionally barred for failure to satisfy the timely-filing requirement. 2 App. 3. 8 The proposed settlement divided $3 million between the two groups. It also provided each class member with full company and union seniority from the date of termination. The agreement specified that "in the event of the timely objection of any interested person, it is agreed that the amount of seniority and credit for length of service for the compensation period will be determined by the Court in its discretion, pursuant to the provisions of Section 706(g), and all other applicable provisions of law, without contest or objection by TWA."3 App. to Pet. for Cert. in No. 80-951, p. 29a. 9 The Independent Federation of Flight Attendants (union), which had replaced ALSSA as the collective-bargaining agent for the flight attendants, was permitted to intervene and to object to the settlement. On the basis that the Court of Appeals had not issued the mandate in its jurisdictional decision, the District Court rejected the union's challenge to its jurisdiction over Subclass B. Id., at 14a-15a. After holding three days of hearings, the District Court approved the settlement and awarded competitive seniority. It explicitly found that full restoration of retroactive seniority would not have an unusual adverse impact upon currently employed flight attendants in any way atypical of Title VII cases. Id., at 18a-19a. 10 The union appealed. It argued that, because of the Court of Appeals' earlier opinion, the District Court lacked jurisdiction to approve the settlement or to order retroactive seniority with respect to Subclass B. The Court of Appeals affirmed, reasoning that "the principles favoring settlement of class action lawsuits remain the same regardless of whether the disputed legal issues center on the jurisdiction of the court over the action." Air Line Stewards and Stewardesses Assn. v. Trans World Airlines, Inc., 630 F.2d 1164, 1169 (1980). It further explained that the question of jurisdiction as to Subclass B had not been finally determined because a challenge to its decision was pending before this Court and observed that the Courts of Appeals were split on the issue. The Court of Appeals noted that the District Court clearly had subject-matter jurisdiction over the claims of Subclass A. It concluded: "Where, as here, the jurisdictional question is not settled with finality, parties should not be forced to litigate the issue of jurisdiction if they can arrive at a settlement that is otherwise appropriate for district court approval." Ibid. 11 The Court of Appeals also affirmed the award of seniority. According to the court, the settlement served the public policy of remedying past acts of sex discrimination and the consequences of those past acts. Moreover, "[t]he right to have its objections heard does not, of course, give the intervenor the right to block any settlement to which it objects." Ibid.4 12 The union petitioned for certiorari, No. 80-951. We granted its petition together with the petitions in No. 78-1545 and No. 78-1549, 450 U.S. 979, 101 S.Ct. 1511, 67 L.Ed.2d 813 (1981), but later removed the TWA case, No. 78-1549,5 from the argument docket and limited the grant in No. 80-951. 451 U.S. 980, 101 S.Ct. 2309, 68 L.Ed.2d 836 (1981). II 13 The single question in No. 78-1545 is whether the timely filing of an EEOC charge is a jurisdictional prerequisite to bringing a Title VII suit in federal court or whether the requirement is subject to waiver and estoppel. In reaching its decision that the requirement is jurisdictional, the Court of Appeals for the Seventh Circuit relied on its reading of the statutory language, the absence of any indication to the contrary in the legislative history, and references in several of our cases to the 90-day filing requirement as "jurisdictional."6 Other Courts of Appeals that have examined the same materials have reached the opposite conclusion.7 14 We hold that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.8 The structure of Title VII, the congressional policy underlying it, and the reasoning of our cases all lead to this conclusion. 15 The provision granting district courts jurisdiction under Title VII, 42 U.S.C. §§ 2000e-5(e) and (f), does not limit jurisdiction to those cases in which there has been a timely filing with the EEOC.9 It contains no reference to the timelyfiling requirement. The provision specifying the time for filing charges with the EEOC appears as an entirely separate provision, and it does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.10 The legislative history of the filing provision is sparse, but Senator Humphrey did characterize the time period for filing a claim as a "period of limitations," 110 Cong.Rec. 12723 (1964), and Senator Case described its purpose as preventing the pressing of "stale" claims, id., at 7243, the end served by a statute of limitations. 16 Although subsequent legislative history is not dispositive, see Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596, 100 S.Ct. 800, 813, 63 L.Ed.2d 36 (1980); Cannon v. University of Chicago, 441 U.S. 677, 686, n. 7, 99 S.Ct. 1946, 1952, n. 7, 60 L.Ed.2d 560 (1979), the legislative history of the 1972 amendments also indicates that Congress intended the filing period to operate as a statute of limitations instead of a jurisdictional requirement. In the final Conference Committee section-by-section analysis of H.R. 1746, the Equal Opportunity Act of 1972, 118 Cong.Rec. 7166, 7167 (1972), the Committee not only termed the filing period a "time limitation," but explained: 17 "This subsection as amended provides that charges be filed within 180 days of the alleged unlawful employment practice. Court decisions under the present law have shown an inclination to interpret this time limitation so as to give the aggrieved person the maximum benefit of the law; it is not intended that such court decisions should be in any way circumscribed by the extension of the time limitations in this subsection."11 18 This result is entirely consistent with prior case law. Although our cases contain scattered references to the timely-filing requirement as jurisdictional, the legal character of the requirement was not at issue in those cases, and as or more often in the same or other cases, we have referred to the provision as a limitations statute.12 19 More weighty inferences however, are to be drawn from other cases. Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), was a Title VII suit against an employer and a union. The District Court denied relief for unnamed class members on the ground that those individuals had not filed administrative charges under the provisions of Title VII and that relief for them was thus not appropriate. The Court of Appeals did not disturb this ruling, but we reversed, saying: 20 "The District Court stated two reasons for its denial of seniority relief for the unnamed class members. The first was that those individuals had not filed administrative charges under the provision of Title VII with the Equal Employment Opportunity Commission and therefore class relief of this sort was not appropriate. We rejected this justification for denial of class-based relief in the context of backpay awards in Albemarle Paper [Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975),] and . . . reject it here. This justification for denying class-based relief in Title VII suits has been unanimously rejected by the courts of appeals, and Congress ratified that construction by the 1972 amendments. . . ." Id., at 771, 96 S.Ct., at 1267 (footnote omitted). 21 If the timely-filing requirement were to limit the jurisdiction of the District Court to those claimants who have filed timely charges with the EEOC, the District Courts in Franks and Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), would have been without jurisdiction to adjudicate the claims of those who had not filed as well as without jurisdiction to award them seniority. We did not so hold. Furthermore, we noted that Congress had approved the Court of Appeals cases that awarded relief to class members who had not exhausted administrative remedies before the EEOC. It is evident that in doing so, Congress necessarily adopted the view that the provision for filing charges with the EEOC should not be construed to erect a jurisdictional prerequisite to suit in the district court. 22 In Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972), we announced a guiding principle for construing the provisions of Title VII. Declining to read literally another filing provision of Title VII, we explained that a technical reading would be "particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process." Id., at 527, 92 S.Ct., at 619. That principle must be applied here as well. 23 The reasoning of other cases assumes that the filing requirement is not jurisdictional. In Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976), we rejected the argument that the timely-filing requirement should be tolled because the plaintiff had been pursuing a grievance procedure set up in the collective-bargaining agreement. We did not reach this decision on the basis that the 180-day period was jurisdictional. Instead, we considered the merits of a series of arguments that grievance procedures should toll the requirement. Such reasoning would have been gratuitous if the filing requirement were a jurisdictional prerequisite.13 24 Similarly, we did not sua sponte dismiss the action in Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980) on the basis that the District Court lacked jurisdiction because of plaintiff's failure to comply with a related Title VII time provision. Instead, we merely observed in a footnote that "[p]etitioner did not assert respondent's failure to file the action within 90 days as a defense." Id., at 811, n. 9, 100 S.Ct., at 2489, n. 9. 25 By holding compliance with the filing period to be not a jurisdictional prerequisite to filing a Title VII suit, but a requirement subject to waiver as well as tolling when equity so requires, we honor the remedial purpose of the legislation as a whole without negating the particular purpose of the filing requirement, to give prompt notice to the employer. 26 We therefore reverse the Court of Appeals in No. 78-1545. III 27 In No. 80-951, the union challenges on several grounds the District Court's authority to award, over the union's objection, retroactive seniority to the members of Subclass B. We have already rejected the union's first contention, namely, that the District Court had no jurisdiction to award relief to those who had not complied with Title VII's filing requirement. The union also contends that in any event there has been no finding of discrimination with respect to Subclass B members and that the predicate for relief under § 706(g) is therefore missing. This contention is also without merit. 28 The District Court unquestionably found an unlawful discrimination against the plaintiff class, and the class at that time had not been subdivided into Subclasses A and B. Summary judgment ran in favor of the entire class, including both those members who had filed timely charges and those who had not. The Court of Appeals affirmed the summary judgment order as well as the finding of a discriminatory employment practice. The court went on, however, to hold that the District Court had no jurisdiction over claims by those who had not met the filing requirement and that those individuals should have been excluded from the class prior to the grant of summary judgment. But as we have now held, that ruling is erroneous. The District Court did have jurisdiction over nonfiling class members. Thus, there was no jurisdictional barrier to its finding of discrimination with respect to the entire class. With the reversal of the Court of Appeals judgment in No. 78-1545 and our dismissal of No. 78-1549, which had challenged the affirmance of the summary judgment order, the order that found classwide discrimination remains intact and is final. The award of retroactive seniority to members of Subclass B as well as Subclass A is not infirm for want of a finding of a discriminatory employment practice. 29 Equally meritless is the union's contention that retroactive seniority contrary to the collective-bargaining agreement should not be awarded over the objection of a union that has not itself been found guilty of discrimination. In Franks v. Bowman Transportation Co., 424 U.S., at 764, 96 S.Ct., at 1264, we read the legislative history of Title VII as giving 30 "emphatic confirmation that federal courts are empowered to fashion such relief as the particular circumstances of a case may require to effect restitution, making whole in so far as possible the victims of . . . discrimination . . . ." 31 While recognizing that backpay was the only remedy specifically mentioned in the provision, we reasoned that adequate relief might be denied without a seniority remedy. We concluded that the class-based seniority relief for identifiable victims of illegal discrimination is a form of relief generally appropriate under § 706(g). 32 In Franks, the District Court had found both that the employer had engaged in discrimination and that the discriminatory practices were perpetuated in the collective-bargaining agreements with the unions. 424 U.S., at 751, 96 S.Ct., at 1257-58. Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), however, makes it clear that once there has been a finding of discrimination by the employer, an award of retroactive seniority is appropriate even if there is no finding that the union has also illegally discriminated. In Teamsters, the parties agreed to a decree which provided that the District Court would decide "whether any discriminatees should be awarded additional equitable relief such as retroactive seniority." Id., at 331, n. 4, 97 S.Ct., at 1852, n. 4. Although we held that the union had not violated Title VII by agreeing to and maintaining the seniority system, we nonetheless directed the union to remain in the litigation as a defendant so that full relief could be awarded the victims of the employer's post-Act discrimination. Id., at 356, n. 43, 97 S.Ct., at 1865, n. 43.14 Here, as in Teamsters, the settlement left to the District Court the final decision as to retroactive seniority. 33 In resolving the seniority issue, the District Court gave the union all the process that was due it under Title VII in our cases. The union was allowed to intervene. The District Court heard its objections, made appropriate findings, and determined that retroactive seniority should be awarded. The Court of Appeals agreed with that determination, and we have eliminated from our consideration here the question whether on the facts of these cases the Court of Appeals and the District Court were in error in this respect. 34 Accordingly, the judgment in No. 78-1545 is reversed and the judgment in No. 80-951 is affirmed. 35 So ordered. 36 Justice STEVENS took no part in the consideration or decision of these cases. 37 Justice POWELL, with whom THE CHIEF JUSTICE and Justice REHNQUIST join, concurring in No. 78-1545 and concurring in the judgment in No. 80-951. 38 The above cases arise out of the same protracted controversy, and the Court disposes of them in a single opinion. The only question in No. 78-1545 is whether the timely filing of an EEOC charge is a jurisdictional prerequisite to bringing a Title VII suit. I agree that timely filing is not jurisdictional and is subject to waiver and estoppel. Accordingly, I join Parts I and II of the Court's opinion. 39 I join only the judgment in No. 80-951. My concern with the Court's opinion is that it does not make clear that a timely charge, as well as a violation of Title VII, is a prerequisite to disturbing rights under a bona fide seniority system protected by § 703(h), 42 U.S.C. § 2000e-2(h).1 This was made clear in United Air Lines, Inc. v. Evans, 431 U.S. 553, 559, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977), a case not discussed in the Court's opinion.2 I nevertheless concur in the remand of No. 80-951, in which a settlement agreement was approved awarding retroactive competitive-status seniority under the standard of Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). This case has been in litigation since 1970, and in view of its complexity it is difficult to be certain as to "what happened and when." I believe, however, that one can conclude that the requirements of Evans were met. 40 As noted in the Court's opinion, ante, at 398-399, the District Court's order finding classwide discrimination is now final. The District Court also entered an order finding that timely charges had been filed for all class members, and that order is similarly final. The timely-charge order was entered on October 15, 1976, three days before the entry of the order finding classwide discrimination. These orders were consolidated on appeal to the Court of Appeals for the Seventh Circuit. Although the October 18th order, finding discrimination, was affirmed, the Court of Appeals vacated the other order, holding that the members of Subclass B had failed to meet the jurisdictional requirements of Title VII because they had not filed timely claims. No District Court order was ever actually vacated because, on the motion of the parties, the Court of Appeals stayed its mandate, and the parties then reached a settlement. Today, the Court reverses that portion of the Court of Appeals' judgment that would have vacated the October 15th order. As a result, both the October 15th and October 18th orders, finding timely charges and classwide discrimination, are now final. I therefore concur in the judgment of the Court affirming the award of retroactive competitive-status seniority under the standard of Franks v. Bowman Transportation Co.3 1 The class was defined as all female flight cabin attendants who were terminated from employment with TWA on or after July 2, 1965, for reasons of pregnancy. The Court of Appeals assumed the class to include only those who would have resumed flight duty after becoming mothers but for TWA's policy. In re Consolidated Pretrial Proceedings in the Airline Cases, 582 F.2d 1142, 1147, and n. 9 (CA7 1978). The class thus included both former employees and current employees, that is, both those who declined and those who accepted ground positions. 2 When suit was filed, 42 U.S.C. § 2000e-5(d) (1970 ed.) required charges to be filed within 90 days of the alleged unlawful employment practice. In 1972, this provision was amended to extend the time limit to 180 days and is now codified as § 2000e-5(e). 3 Section 706(g) of Title VII, 78 Stat. 253, as amended, 42 U.S.C. § 2000e-5(g) provides: "If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . ., or any other equitable relief as the court deems appropriate. . . ." 4 The Court of Appeals relied on language in Franks v. Bowman Transportation Co., 424 U.S. 747, 779, n. 41, 96 S.Ct. 1251, 1271, n. 41, 47 L.Ed.2d 444 (1976): "[D]istrict courts should take as their starting point the presumption in favor of rightful-place seniority relief, and proceed with further legal analysis from that point; and . . . such relief may not be denied on the abstract basis of adverse impact upon interests of other employees but rather only on the basis of unusual adverse impact arising from facts and circumstances that would not be generally found in Title VII cases." 5 In No. 78-1549, TWA contends (a) that the Court of Appeals erred in affirming summary judgment for plaintiffs on the issue of liability, (b) that TWA should be required to grant only prospective relief to plaintiffs, and (c) that the Court of Appeals erred in defining the subclass of plaintiffs who had filed timely charges with the EEOC. In view of our decision in No. 78-1545 and No. 80-951, we now dismiss the petition in No. 78-1549 as improvidently granted. 6 See Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 240, 97 S.Ct. 441, 449, 50 L.Ed.2d 427 (1976); United Air Lines, Inc. v. Evans, 431 U.S. 553, 555, n. 4, 97 S.Ct. 1885, 1887, n. 4, 52 L.Ed.2d 571 (1977); Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973). 7 See Carlile v. South Routt School District Re 3-J, 652 F.2d 981 (CA10 1981); Coke v. General Adjustment Bureau, Inc., 640 F.2d 584 (CA5 1981); Leake v. University of Cincinnati, 605 F.2d 255 (CA6 1979); Hart v. J. T. Baker Chemical Corp., 598 F.2d 829 (CA3 1979); Laffey v. Northwest Airlines, Inc., 185 U.S.App.D.C. 322, 567 F.2d 429 (1976). 8 One of the questions on which we granted certiorari in No. 80-951 was whether the Court of Appeals erred in affirming the District Court's approval of the settlement of jurisdictionally barred claims. In reaching its decision, the Court of Appeals for the Seventh Circuit explicitly declined to follow McArthur v. Southern Airways, Inc., 569 F.2d 276 (CA5 1978) (en banc). Air Line Stewards and Stewardesses Assn. v. TWA, 630 F.2d 1164, 1168-1169 (1980). In McArthur, the Court of Appeals for the Fifth Circuit reversed the approval of a settlement agreement in a Title VII class action, holding that the District Court lacked jurisdiction because no plaintiff had filed a timely charge of discrimination with the EEOC. Because of our holding in No. 78-1545 that timely filing with the EEOC is not a jurisdictional prerequisite, this issue need not be resolved. 9 Title 42 U.S.C. § 2000e-5(f)(3), for example, reads: "Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. . . ." 10 Section 2000e-5(e), the amended version of the filing provision, reads simply: "A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred . . . ." 11 The Senate Labor Committee's section-by-section analysis of the amendments explained that "[t]his subsection would permit . . . a limitation period similar to that contained in the Labor-Management Relations Act, as amended." S.Rep.No. 92-415, p. 37 (1971), U.S.Code Cong. & Admin.News 1972, p. 2137. We have recognized that the National Labor Relations Act was "the model for Title VII's remedial provisions," Teamsters v. United States, 431 U.S. 324, 366, 97 S.Ct. 1843, 1870, 52 L.Ed.2d 396 (1977). Because the time requirement for filing an unfair labor practice charge under the National Labor Relations Act operates as a statute of limitations subject to recognized equitable doctrines and not as a restriction of the jurisdiction of the National Labor Relations Board, see NLRB v. Local 264, Laborers' Int'l Union, 529 F.2d 778, 781-785 (CA8 1976); Shumate v. NLRB, 452 F.2d 717, 720 (CA4 1971); NLRB v. A. E. Nettleton Co., 241 F.2d 130, 133 (CA2 1957); NLRB v. Itasca Cotton Mfg. Co., 179 F.2d 504, 506-507 (CA5 1950), the time limitations under Title VII should be treated likewise. Moreover, when Congress in 1978 revised the filing requirement of the Age Discrimination in Employment Act of 1967, 81 Stat. 602, 29 U.S.C. § 621 et seq. (1976 ed. and Supp.V), which was modeled after Title VII, see Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979), the House Conference Report explicitly stated that "the 'charge' requirement is not a jurisdictional prerequisite to maintaining an action under the ADEA and that therefore equitable modification for failing to file within the time period will be available to plaintiffs under this Act." H.R.Conf.Rep. 95-950, p. 12, U.S.Code Cong & Admin.News 1978, 504, 534. 12 As the Court of Appeals for the Fifth Circuit points out in its opinion in Coke, supra, at 588-589, references to the filing requirement as a statute of limitations have come to dominate in our opinions: "The trend of the Supreme Court cases is also significant. In the early cases, the Court in dicta referred to such time provisions using the label 'jurisdictional prerequisite.' McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). In the 1976 Robbins & Myers decision the jurisdictional label was used once, but there were numerous references to 'tolling the limitations period,' 429 U.S., at 239, 97 S.Ct., at 448, and other labels obviously referring to a statute of limitations, as opposed to subject matter jurisdiction. See also United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), in which both labels are used. From and after late 1977, all nine justices have concurred in opinions containing dicta using the limitations label to the exclusion of the jurisdictional label. Occidental Life Insurance Company v. EEOC, 432 U.S. 355, 371-[3]72, 97 S.Ct. 2447, 2457, 53 L.Ed.2d 402 (1977); United Air Lines, Inc. v. McDonald, 432 U.S. 385, 391-[3]92, 97 S.Ct. 2464, 2468, 53 L.Ed.2d 423 (1977); Mohasco Corp. v. Silver, 447 U.S. 807, 818-823, 100 S.Ct. 2486, 2493-95, 65 L.Ed.2d 532 (1980); Delaware State College v. Ricks, [449] U.S. [250], 101 S.Ct. 498, 66 L.Ed.2d 431 (1980)." 13 In Robbins & Myers, we also held that the expanded 180-day "limitations period," enacted by the 1972 amendments, was retroactive. 429 U.S., at 244, 97 S.Ct., at 451. This holding presupposes that the requirement is not jurisdictional. Moreover, in reaching this conclusion, we quoted from Chase Securities Corp. v. Donaldson, 325 U.S. 304, 316, 65 S.Ct. 1137, 1142-1143, 89 L.Ed. 1628 (1945): "[C]ertainly it cannot be said that lifting the bar of a statute of limitation so as to restore a remedy lost through mere lapse of time is per se an offense against the Fourteenth Amendment." Several Courts of Appeals have read Robbins & Myers as implicitly approving equitable tolling. Coke v. General Adjustment Bureau, Inc., 640 F.2d, at 588; Hart v. J. T. Baker Chemical Corp., 598 F.2d, at 833; Smith v. American President Lines, Ltd., 571 F.2d 102, 108-109 (CA2 1978). 14 In noting that the union in Teamsters properly remained a defendant in the litigation, we cited to Federal Rule of Civil Procedure 19(a). The union here was not joined under Rule 19 when individuals replaced the union as class representatives, but intervened later. Cf. EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1095 (CA6 1974) (joinder under Rule 19(a) provides union with full opportunity to participate in litigation and formulation of proposed relief, although as practical matter union does not play role in litigation until court finds violation of Title VII). 1 In Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), timely charges of discrimination had been filed. Relief was awarded on the theory that current employees were merely being placed in the position they would have enjoyed, relative to the victims, had no discrimination ever taken place. In contrast, when the victims of discrimination have slept on their rights, it will often be unfair to award them full retroactive seniority at the expense of employees who may have accrued their present seniority in good faith. When timely charges have not been filed, a district court should consider these equities in determining whether to award competitive-status seniority, and the presence of a settlement between the employer and the plaintiffs should not affect the balancing of these equities. Under any other rule, employers will be able to settle Title VII actions, in part, by bargaining away the rights of current employees. 2 The Court refers to United Air Lines v. Evans twice, see ante, at 393, n. 6, and at 396, n. 12; both references are to terms used by the Evans Court in describing the timely-filing requirement. 3 I am not entirely content with this formalistic resolution of the "timely filing" issue. But, after almost 12 years of litigation, neither the parties nor the courts have addressed specifically whether the failure to file timely charges should affect the balance of the equities in awarding competitive-status seniority. Rather than prolong this disruptive litigation, it may well be in the best interest of all of the parties to approve the settlement—as the Court's judgment does today.

12

455 U.S. 404 102 S.Ct. 1137 71 L.Ed.2d 250 G. D. SEARLE & COMPANY, Petitioner,v.Susan COHN and Walter Cohn. No. 80-644. Argued Dec. 7, 1981. Decided Feb. 24, 1982. Syllabus A New Jersey statute tolls the limitation period for an action against a foreign corporation that "is not represented" in New Jersey by any person or officer upon whom process may be served. In respondents' action against petitioner foreign corporation, originally brought in a New Jersey state court and removed to Federal District Court, petitioner moved for summary judgment based upon the applicable New Jersey statute of limitation, and respondents countered with the tolling provision. Although ruling that petitioner was not represented in New Jersey for purposes of the tolling provision, the District Court nevertheless held that the suit was barred. Reasoning that the tolling provision operated to preserve only causes of action against corporate defendants that were not subject to in personam jurisdiction in New Jersey, and that with the enactment of New Jersey's long-arm rule, the rationale for the pre-existing tolling provision ceased to exist, the District Court found the tolling provision invalid under the Equal Protection Clause of the Fourteenth Amendment. The Court of Appeals reversed. That court's decision was based upon an intervening decision of the New Jersey Supreme Court holding that, as a matter of New Jersey law, the tolling provision continued in force despite the advent of long-arm jurisdiction, and that such provision did not violate the Equal Protection Clause, because the increased difficulty of out-of-state service provided a rational basis for tolling the statute of limitation in a suit against an unrepresented foreign corporation. Held: 1. The tolling provision does not violate the Equal Protection Clause. Rational reasons support the provision despite the institution of long-arm jurisdiction in New Jersey. The unrepresented foreign corporation remains potentially difficult to locate, and the institution of long-arm jurisdiction has not made service upon such a corporation the equivalent of service upon a corporation with a New Jersey representative but requires additional conditions for effective service. Because of these burdens connected with suing unrepresented foreign corporations, as opposed to suing a domestic corporation or a represented foreign corporation, the tolling provision does not deprive an unrepresented foreign corporation of the equal protection of the laws. Pp. 1141-1144. 2. But since neither lower court addressed directly the question whether the tolling provision violates the Commerce Clause, and since, moreover, the Commerce Clause issue is clouded by an ambiguity in state law, the Court of Appeals' judgment is vacated, and the case is remanded for consideration of such issue. P. 1144. 628 F.2d 801, vacated and remanded. William P. Richmond, Chicago, Ill., for petitioner. Walter R. Cohn, South Orange, N.J., for respondents. Justice BLACKMUN delivered the opinion of the Court. 1 A New Jersey statute, N.J.Stat.Ann. § 2A:14-22 (West 1952), tolls the limitation period for an action against a foreign corporation that is amenable to jurisdiction in New Jersey courts but that has in New Jersey no person or officer upon whom process may be served. The United States Court of Appeals for the Third Circuit in this case held that the statute does not violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment. We agree, but we vacate the Court of Appeals' judgment and remand the case for consideration of petitioner's Commerce Clause challenge to the statute. 2 * Respondents, Susan and Walter Cohn, are husband and wife. In 1963, Susan Cohn suffered a stroke. Eleven years later, in 1974, the Cohns sued petitioner, G. D. Searle & Co., in the Superior Court of New Jersey, Essex County, alleging that Susan Cohn's stroke was caused by her use of an oral contraceptive manufactured by petitioner.1 Petitioner was served under New Jersey's long-arm rule, N.J.Ct.Rule 4:4-4(c)(1) (1969). Petitioner removed the suit to federal court and thereafter moved for summary judgment based upon New Jersey's 2-year statute of limitation, N.J.Stat.Ann. § 2A:14-2 (West 1952), governing an "action at law for an injury to the person caused by . . . wrongful act." Respondents countered with § 2A:14-22. That section tolls the statute of limitation for a cause of action against a foreign corporation that "is not represented" in New Jersey "by any person or officer upon whom summons or other original process may be served."2 3 The District Court ruled that petitioner was not represented in New Jersey for the purposes of the tolling provision.3 447 F.Supp. 903, 907-909 (N.J.1978). Nevertheless, it held that respondents' suit was barred. According to the District Court, the tolling provision had operated to prem102 S.Ct. 1141m serve ONLY causes of action against corporate defendants that were not subject to in personam jurisdiction in New Jersey. With the enactment of New Jersey's long-arm rule, now N.J.Ct.Rule 4:4-4(c),4 the rationale for the pre-existing tolling provision ceased to exist. On this reasoning, the court held that the tolling provision served no logical purpose, found it invalid under the Equal Protection Clause, and ruled that the 2-year statute of limitation therefore barred respondents' suit. 447 F.Supp., at 911-913. 4 Respondents appealed. Before the Court of Appeals reached a decision, however, the Supreme Court of New Jersey decided Velmohos v. Maren Engineering Corp., 83 N.J. 282, 416 A.2d 372 (1980), appeal pending, No. 80-629. That court ruled, as a matter of New Jersey law, that the tolling provision continued in force despite the advent of long-arm jurisdiction. In addition, the court concluded that the tolling provision did not violate the Equal Protection or Due Process Clauses of the Fourteenth Amendment, because the increased difficulty of out-of-state service provided a rational basis for tolling the statute of limitation in a suit against an unrepresented foreign corporation. 5 The Court of Appeals then followed the New Jersey Supreme Court's lead and reversed the District Court.5 Summing up what it felt to be the rational basis for the tolling provision, the Court of Appeals explained: "Since service of process under the long-arm statute is more difficult and time-consuming to achieve than service within the state, and since out-of-state, non-represented corporate defendants may be difficult to locate let alone serve, tolling the statute of limitations protects New Jersey plaintiffs and facilitates their lawsuits against such defendants." Hopkins v. Kelsey-Hayes, Inc., 628 F.2d 801, 811 (CA3 1980). 6 Because of the novel and substantial character of the federal issue involved, we granted certiorari, 451 U.S. 905, 101 S.Ct. 1972, 68 L.Ed.2d 293 (1981). II 7 Like the Court of Appeals, we conclude that the New Jersey statute does not violate the Equal Protection Clause. In the absence of a classification that is inherently invidious or that impinges upon fundamental rights, a state statute is to be upheld against equal protection attack if it is rationally related to the achievement of legitimate governmental ends. Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 1080, 67 L.Ed.2d 186 (1981). The New Jersey tolling provision need satisfy only this constitutional minimum. As the Court explained in Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628 (1945): 8 "[Statutes of limitation] represent a public policy about the privilege to litigate. Their shelter has never been regarded as what now is called a 'fundamental' right or what used to be called a 'natural' right of the individual. He may, of course, have the protection of the policy while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control." 9 See also Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483 (1885).6 10 Petitioner insists that the tolling statute no longer is rationally related to a legitimate state objective. Repeating the argument it made below, petitioner claims that the statute's only purpose was to preserve causes of action for those New Jersey plaintiffs unable to obtain in personam jurisdiction over unrepresented foreign corporations. With the presence now of long-arm jurisdiction, petitioner contends, there is no longer a valid reason for tolling the limitation period for a suit against an amenable foreign corporation without a New Jersey representative. 11 We note at the outset, and in passing, that petitioner's argument fails as a matter of state law. The New Jersey Supreme Court disagreed with petitioner's interpretation of the statute. That court observed that the State's original tolling provision did not mention corporations and thus treated them like all other defendants. In 1949, the state legislature amended the statute and exempted corporations except those foreign corporations "not represented" in New Jersey. The legislature, the New Jersey Supreme Court emphasized, did not limit the tolling provision to corporations "not amenable to service" in New Jersey. Consequently, the court reasoned, the tolling provision was not rendered meaningless by the subsequent acceptance of long-arm jurisdiction. Velmohos v. Maren Engineering Corp., 83 N.J., at 288-293, 416 A.2d, at 376-379. As construed by the highest judicial authority on New Jersey law, the meaning of the tolling statute cannot be confined as narrowly as petitioner would like. 12 When the statute is examined under the Equal Protection Clause, it survives petitioner's constitutional challenge because rational reasons support tolling the limitation period for unrepresented foreign corporations despite the institution of long-arm jurisdiction in New Jersey. First, the unrepresented foreign corporation remains potentially difficult to locate. Long-arm jurisdiction does not alleviate this problem, since a New Jersey plaintiff must find the unrepresented foreign corporation before it can be served. See id., at 296, 416 A.2d, at 380. It is true, of course, that respondents had little or no trouble locating this particular, well-known defendant-petitioner, but the tolling provision is premised on a reasonable assumption that unrepresented foreign corporations, as a general rule, may not be so easy to find and serve. See Weinberger v. Salfi, 422 U.S. 749, 780-785, 95 S.Ct. 2457, 2474-76, 45 L.Ed.2d 522 (1975). 13 Second, the institution of long-arm jurisdiction in New Jersey has not made service upon an unrepresented foreign corporation the equivalent of service upon a corporation with a New Jersey representative. The long-arm rule, N.J.Ct.Rule 4:4-4(c)(1) (1969), prescribes conditions upon extraterritorial service to ensure that New Jersey's long-arm jurisdiction has been properly invoked. In Velmohos, the New Jersey Supreme Court explained: 14 "Under our rules, extra-territorial service is not simply an alternative to service within the State. Plaintiffs may not resort to out-of-state service unless proper efforts to effect service in New Jersey have failed. The rule imposes a further burden on a plaintiff by requiring him to gather sufficient information to satisfy a court that service is 'consistent with due process of law.' " 83 N.J., at 296, 416 A.2d, at 381. 15 Thus, there are burdens a plaintiff must bear when he sues a foreign corporation lacking a New Jersey representative that he would not bear if the defendant were a domestic corporation or a foreign corporation with a New Jersey representative. 16 In response to these rationales for treating unrepresented foreign corporations differently from other corporations, petitioner argues that the tolling provision is unnecessary. Petitioner cites N.J.Ct.Rule 4:2-2 and contends that a plaintiff can preserve his cause of action against a hard-to-locate corporate defendant by filing a complaint and thereby halting the running of the limitation period. But this is not an adequate substitute for the tolling provision. A court may dismiss a case if it has not been prosecuted after six months, N.J.Ct.Rule 1:13-7, or if summons is not issued within 10 days of the filing of the complaint, N.J.Ct.Rule 4:4-1. In any event, a State may provide more than one solution for a perceived problem. The Court of Appeals appropriately commented: "Nothing in law or logic prevents the New Jersey legislature from providing New Jersey plaintiffs with a mechanism for relief from the burdens of suits against nonrepresented foreign corporations which is additional to any mechanism found in the Court Rules." 628 F.2d, at 811. 17 Petitioner also argues that a New Jersey plaintiff's burdens do not justify leaving a defendant open to suit without any time limit. In Velmohos, however, the New Jersey Supreme Court expressly authorized an unrepresented foreign corporation to plead another defense in response to a tardy suit. While the tolling provision denies an unrepresented foreign corporation the benefit of the statute of limitation, the corporation, the court stated flatly, remains free to plead laches. "If a plaintiff's delay is inexcusable and has resulted in prejudice to the defendant, the latter may raise the equitable defense of laches to bar the claim." 83 N.J., at 293, n. 10, 416 A.2d, at 378, n. 10. Thus, under New Jersey law, an amenable, unrepresented foreign corporation may successfully raise a bar to a plaintiff's suit if the plaintiff's delay cannot be excused and the corporation has suffered "prejudice." In sum, because of the burdens connected with serving unrepresented foreign corporations, we agree with the Court of Appeals and the New Jersey Supreme Court that the tolling provision does not deprive an unrepresented foreign corporation of the equal protection of the laws.7 See Dew v. Appleberry, 23 Cal.3d 630, 153 Cal.Rptr. 219, 591 P.2d 509 (1979) (holding similar tolling provision rationally related to a valid governmental interest); Vaughn v. Deitz, 430 S.W.2d 487, 490 (Tex.1968) (holding that absence from the State may, consistent with equal protection, support suspension of the statute of limitation). Cf. Bauserman v. Blunt, 147 U.S. 647, 13 S.Ct. 466, 37 L.Ed. 316 (1893) (applying Kansas statute tolling limitation period for out-of-state defendant subject to service, without discussing the constitutional issue). III 18 Petitioner, however, raises another constitutional challenge. The tolling provision as interpreted by the New Jersey Supreme Court, petitioner argues, violates the Commerce Clause. Petitioner insists that, in order to obtain the benefit of the statute of limitation, it must obtain a certificate of authority by registering to do business in New Jersey. See N.J.Stat.Ann. § 14A:13-2 (West 1969). As a result, it will subject itself to all the duties and liabilities imposed on a domestic New Jersey corporation. Petitioner points out that it is engaged solely in interstate commerce in New Jersey, and, relying on cases such as Allenberg Cotton Co. v. Pittman, 419 U.S. 20, 95 S.Ct. 260, 42 L.Ed.2d 195 (1974), and Sioux Remedy Co. v. Cope, 235 U.S. 197, 35 S.Ct. 57, 59 L.Ed. 193 (1914), petitioner contends that New Jersey violates the Commerce Clause by requiring it to register to do business in New Jersey in order to gain the benefit of the statute of limitation. For two reasons, we decline to resolve this issue. 19 First, neither the District Court nor the Court of Appeals addressed the question directly. There is no mention of the Commerce Clause in the opinion of the Court of Appeals. In a footnote, the District Court suggested that the tolling provision would violate the Commerce Clause. 447 F.Supp., at 911, n. 17. But the District Court there was answering respondents' contention that the tolling provision was enacted as a penalty to induce corporations to register to do business in New Jersey, an argument respondents no longer make.8 Thus, neither court considered the Commerce Clause argument in its present form. 20 Second, the Commerce Clause issue is clouded by an ambiguity in state law. The dispute over the Commerce Clause centers in what seems to us to be an opaque footnote in the New Jersey Supreme Court's majority opinion in Velmohos. That court, without citation, commented: "We note that whatever hardship on foreign corporations might be caused by continued exposure to suit can be easily eliminated by the designation of an agent for service of process within the State." 83 N.J., at 293, n. 10, 416 A.2d, at 378, n. 10. Petitioner, contending that there is no procedure in New Jersey for simply appointing an agent, interprets this sentence as requiring it to register to do business in New Jersey pursuant to N.J.Stat.Ann. § 14A:13-2 (West 1969) in order to obtain the benefit of the statute of limitation. Respondents, on the other hand, read the footnote as referring to the mere appointment of an agent, to be accomplished in some manner unexplained to us. 21 The lone sentence in the Velmohos footnote by itself does not clearly demonstrate the correctness of either view or lucidly inform us as to what the state law is. We consider it unwise for us to pass upon the constitutionality of this aspect of New Jersey law when we are uncertain of the critical footnote's meaning, particularly in light of the fact that the lower courts in this case did not address the Commerce Clause or the state-law issues. Consequently, we vacate the Court of Appeals' judgment and remand the case, so that the Court of Appeals may determine whether petitioner's Commerce Clause argument, if it was properly raised below, has merit. 22 It is so ordered. 23 Justice POWELL, with whom THE CHIEF JUSTICE joins, concurring in part and dissenting in part. 24 I concur in Parts I and II of the Court's opinion. In Part III of its opinion, the Court addresses the Commerce Clause question and "decline[s] to resolve" it because "neither the District Court nor the Court of Appeals addressed the question directly." A further reason assigned by the Court for remanding on this issue is that one sentence in a footnote to Velmohos v. Maren Engineering Corp., 83 N.J. 282, 293, n. 10, 416 A.2d 372, 378, n. 10 (1980), is "ambiguous." 25 The Commerce Clause question was not presented to the District Court by petitioner,1 and normally this would fully justify a remand. It was, however, presented and argued to the Court of Appeals for the Third Circuit. Pet. for Cert. 6-7.2 Curiously, that court did not mention the question in its opinion. Petitioner continued, as it had a right to do, to rely on the ground. Its petition for certiorari expressly included the question whether New Jersey's tolling statute "constitutes the imposition of a burden [on] interstate commerce." Id., at i. With full knowledge that the Court of Appeals had ignored petitioner's Commerce Clause argument, we granted certiorari. Our grant did not limit the questions presented. See 451 U.S. 905, 101 S.Ct. 1972, 68 L.Ed.2d 293 (1981). And respondents have not suggested that this question is not properly before us. Indeed, the issue was addressed at length by both parties in their briefs and in oral argument. In my view, the question is properly before us. 26 As I do not share the Court's view that ambiguity exists as to New Jersey law, I would decide the question on which we granted this case. 27 * Petitioner argues that under New Jersey law the only way a foreign corporation may appoint an agent for service of process, and thereby obtain the benefit of the statute of limitations, is to obtain a certificate of authority to transact business in the State. Respondents answer that other means of appointing such an agent—without qualifying to do business—are provided by New Jersey law. This difference between the parties is critical to the resolution of the Commerce Clause question, as significant consequences follow from registration. Neither Velmohos, nor any other New Jersey case brought to our attention, identifies any means—other than qualification—of appointing a duly authorized agent for service of process. 28 The Court perceives ambiguity in the following footnote in Velmohos: 29 "We note that whatever hardship on foreign corporations might be caused by continued exposure to suit [due to tolling of the statute of limitations] can be easily eliminated by the designation of an agent for service of process within the State." 83 N.J., at 293, n. 10, 416 A.2d, at 378, n. 10. 30 The question before us was not the issue in Velmohos. The footnote merely says that the statute of limitations tolling problem may be eliminated "by the designation of an agent for service of process." This is simply a neutral observation that says nothing as to the means of designation of an agent under New Jersey law. If there were a genuine ambiguity in New Jersey statutes a remand would indeed be justified. I find no such ambiguity. II 31 Only three New Jersey statutes have been identified as relevant, one by petitioner and two by respondents. 32 Petitioner cites N.J.Stat.Ann. §§ 14A:4-1 and 14A:13-4 (West 1969). This is a conventional type of statute requiring the qualification of foreign corporations that transact business in the State. It includes the requirement of a registered agent. Section 14A:13-4(1) requires the foreign corporation to file in the office of the Secretary of State an application setting forth specified information, including the name and address of the registered agent and "a statement that the registered agent is an agent of the corporation upon whom process against the corporation may be served." 33 Counsel for petitioner obtained—and filed with the Court—an opinion from the New Jersey Secretary of State advising, in effect, that the foregoing statute is the only means of designating a registered agent for service of process.3 34 The Velmohos opinion itself suggests that this statute is the means by which a corporation must appoint an agent to gain the benefit of New Jersey's statute of limitations. In Velmohos, the New Jersey Supreme Court reviewed the legislative history of the tolling provision at issue in this case. As originally enacted, it simply tolled limitations periods while a person was not a resident of the State; there was no specific reference to corporations. The provision was amended in 1949 to add the current language, which grants the benefit of the statutes of limitations to foreign corporations that are "represented" in New Jersey. The Velmohos court quoted a portion of the 1949 legislative history: " 'Foreign corporations licensed to do business in New Jersey are now deprived by judicial construction of the benefit of the statute of limitations. The purpose of this bill is to correct that situation.' " 83 N.J., at 290, 416 A.2d, at 377, quoting Statement Accompanying Assembly No. 467 (1949) (emphasis added). See also Coons v. Honda Motor Co., Ltd. of Japan, 176 N.J.Super. 575, 582, 424 A.2d 446, 450 (1980), cert. pending, No. 80-2003. This reference to a conventional scheme of licensing foreign corporations is further confirmation that § 14A:4-1 et seq. are the means by which corporations are to gain relief from the disputed tolling provision. 35 Respondents are represented by New Jersey counsel. They do not dispute that statutory authority is necessary. Rather, they insist that the qualification statute is not the only statute authorizing appointment of a New Jersey agent for service. They cite two other statutes: the New Jersey fictitious corporate name statute, N.J.Stat.Ann. § 14A:2-2.1 (West Supp.1981-1982), and the New Jersey business and partnership name registration statute. § 56:1-1 (West 1964). Respondents cite no New Jersey case, and present no opinion from any state official, in support of their view that these statutes provide a means of appointing an agent for service without complying with § 14A:4-1 et seq. 36 Neither of the statutes cited by respondents appears to have anything to do with the appointment by foreign corporations of agents for the service of process. The fictitious corporate name statute makes no reference either to appointment of agents of any type or to provisions for service of process. According to the accompanying comments of the New Jersey Corporation Law Revision Commission, "[t]he purpose of this [statute] is to create a public record of fictitious names used by corporations and thereby eliminate the possibility of deception." Commissioners' Comment 1972 Amendment, reprinted after N.J.Stat.Ann. § 14A:2-2.1 (West Supp.1981-1982). Moreover, counsel for respondents makes no claim that petitioner uses—or has ever used—a fictitious name in New Jersey. 37 The New Jersey business and partnership name registration law appears to be equally irrelevant. The New Jersey Corporation Law Revision Commission explains the relationship between these two fictitious name statutes: 38 "Until adoption of [the corporate fictitious name statute], there was no requirement that a corporation register a fictitious name, although there was a requirement that proprietorships and partnerships transacting business under assumed names file business name certificates. N.J.S.A. 56:1-1 et seq. That statute is expressly inapplicable to corporations. N.J.S.A. 56:1-5." Ibid. 39 Counsel for respondent has offered no answer to the statement of the Revision Commission that the proprietorship and partnership registration statute is "inapplicable to corporations."4 40 Thus, counsel have brought to our attention only three statutes, and I have found no others. The registration statute, § 14A:4-1 et seq., explicitly provides for the designation of an agent for service. Neither of the statutes relied on by respondents has any provision for the appointment of an agent by a foreign corporation. In these circumstances, we are justified in concluding—as the opinion from the office of the New Jersey Secretary of State advises—that foreign corporations may designate an agent for service of process only by obtaining a certificate of authority to do business. 41 This squarely presents the serious question whether the consequences of registration in the State, solely to obtain the protection of the statute of limitations, unduly burden interstate commerce.5 See Allenberg Cotton Co. v. Pittman, 419 U.S. 20, 95 S.Ct. 260, 42 L.Ed.2d 195 (1974). This challenge has considerable force. As this was a question on which we granted certiorari and as it has been fully argued by counsel, I think in all fairness we should decide it rather than remand the case for a continuation of this litigation. 42 I therefore dissent from the decision of the Court to remand. 43 Justice STEVENS, dissenting. 44 The equal protection question in this case is novel. I agree with the Court that there is a rational basis for treating unregistered foreign corporations differently from registered corporations because they are somewhat more difficult to locate and to serve with process. Thus, a provision that merely gave plaintiffs a fair opportunity to overcome these difficulties—for example, a longer period of limitations for suits against such corporations, or a tolling provision limited to corporations that had not filed their current address with the Secretary of State would unquestionably be permissible. But does it follow that it is also rational to deny such corporations the benefit of any statute of limitations? Because there is a rational basis for some differential treatment, does it automatically follow that any differential treatment is constitutionally permissible? I think not; in my view the Constitution requires a rational basis for the special burden imposed on the disfavored class as well as a reason for treating that class differently. 45 The Court avoids these troubling questions by noting that the New Jersey Supreme Court has stated that an unrepresented foreign corporation may plead the defense of laches in an appropriate case. Ante, at 1143. But there are material differences between laches—which requires the defendant to prove inexcusable delay and prejudice—and the bar of limitations, which requires no such proof. Thus, the availability of this alternative defense neither eliminates the differential treatment nor provides a justification for it; the defense merely lessens its adverse consequences. 46 I can find no legitimate state purpose to justify the special burden imposed on unregistered foreign corporations by the challenged statute.* I would reverse the judgment of the Court of Appeals. 1 Petitioner is a Delaware corporation with principal place of business in Illinois. At all times pertinent to this case, petitioner was engaged in the business of manufacturing and selling pharmaceutical products. 2 Section 2A:14-22 reads in pertinent part: "If any person against whom there is any of the causes of action specified in sections 2A:14-1 to 2A:14-5 and 2A:14-8 . . . is not a resident of this state when such cause of action accrues, . . . or if any corporation . . . not organized under the laws of this state, against whom there is such a cause of action, is not represented in this state by any person or officer upon whom summons or other original process may be served, when such cause of action accrues or at any time before the expiration of the times so limited, the time or times during which such person . . . is not residing within this state or such corporation . . . is not so represented within this state shall not be computed as part of the periods of time within which such an action is required to be commenced by the section. The person entitled to any such action may commence the same after the accrual of the cause therefor, within the period of time limited therefor by said section, exclusive of such time or times of nonresidence or nonrepresentation." 3 Petitioner had so-called "detailmen" in New Jersey. These were employees who promoted its products among New Jersey physicians. The District Court, contrary to petitioner's urging, held that the detailmen were not "persons" or "officers" for the purpose of the tolling provision, 447 F.Supp. 903, 906-907 (N.J.1978), and the Court of Appeals agreed, Hopkins v. Kelsey-Hayes, Inc., 628 F.2d 801, 808 (CA3 1980). That holding is not disputed in this Court. 4 New Jersey's long-arm service rule was promulgated in 1958 as N.J.Ct.R.R. 4:4-4(d). In 1971, the New Jersey Supreme Court interpreted the rule to permit extraterritorial service to the full extent allowed by the United States Constitution. Avdel Corp. v. Mecure, 58 N.J. 264, 277 A.2d 207. See generally Velmohos v. Maren Engineering Corp., 83 N.J. 282, 289-292, 416 A.2d 372, 376-378 (1980), appeal pending, No. 80-629. 5 The Court of Appeals' decision was on consolidated appeals of the instant case and Hopkins v. Kelsey-Hayes, Inc., 463 F.Supp. 539 (N.J.1978), aff'd, 628 F.2d 801 (CA3 1980), cert. pending, No. 80-663. In Hopkins, a different New Jersey Federal District Judge had held the tolling provision to be consistent with the Equal Protection and Due Process Clauses. 6 Before the Court of Appeals, petitioner conceded that the tolling provision does not implicate a suspect classification. See 628 F.2d, at 808-809. Before this Court, petitioner argues for a heightened level of scrutiny because it is a corporation not doing business in New Jersey and therefore is without a voice in the New Jersey Legislature. Only a rational basis, however, is required to support a distinction between foreign and domestic corporations. Western & Southern Life Ins. Co. v. State Board of Equalization of California, 451 U.S. 648, 668, 101 S.Ct. 2070, 2083, 68 L.Ed.2d 514 (1981). The same is true here where the tolling provision treats an unrepresented foreign corporation differently from a domestic corporation and from a foreign corporation having a New Jersey representative. 7 Petitioner also presses a due process claim. In the Court of Appeals, petitioner argued that the tolling statute violates due process "by unfairly and irrationally denying certain foreign corporations the benefit of the Statute of Limitations without furthering any legitimate societal interest." Brief for Defendant-Appellee and Cross-Appellant in Nos. 79-2406 and 79-2605 (CA3), p. 29. The Court of Appeals rejected petitioner's due process challenge to the statute at the same time that it rejected petitioner's equal protection contention. See 628 F.2d, at 808-809. Indeed, this due process argument is nothing more than a restatement of petitioner's equal protection claim. See Velmohos, 83 N.J., at 297, 416 A.2d, at 381. In this Court, petitioner has attempted to put forward a new due process argument. Petitioner notes that it can obtain the benefit of the statute of limitation by appointing an agent to accept service. See Velmohos, 83 N.J., at 293, n. 10, 416 A.2d, at 378, n. 10; see also infra, at 1144. Fearing that appointment of an agent might subject it to suit in New Jersey when there otherwise would not be the minimum contacts required for suit in that State under the Due Process Clause, see International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), petitioner insists that New Jersey law violates due process by conditioning the benefit of the limitation period upon the appointment of a New Jersey agent. Because petitioner did not present this argument to the Court of Appeals, we do not address it. See United States v. Ortiz, 422 U.S. 891, 898, 95 S.Ct. 2585, 2589, 45 L.Ed.2d 623 (1975). 8 At that time, respondents were seeking to supply a rational basis for the tolling provision by arguing that it was intended as a penalty to induce foreign corporations to obtain New Jersey licenses. The District Court rejected that interpretation of the tolling provision before suggesting that respondents' reading of the statute would violate the Commerce Clause. 447 F.Supp., at 911, n. 17. It seems to us that the District Court was on sound ground when it rejected this theory of the statute's origin, since there is no hint in Velmohos that the tolling provision was designed to be a penalty for failure to obtain a New Jersey license. 1 The District Court, apparently sua sponte, suggested that the tolling provision would violate the Commerce Clause but did not decide the question. See ante, at 1144, and n.8. 2 Petitioner's assertion that it argued the Commerce Clause issue before the Court of Appeals is confirmed by its Third Circuit brief. See Brief for Defendant-Appellee and Cross-Appellant G. D. Searle & Co. in Nos. 79-2406 and 79-2605 (CA3), pp. 2, 33-38. 3 The opinion reads in full as follows: "In response to your recent letter, please be advised that it is the view of the Department of State that unless a foreign corporation has qualified to do business in New Jersey, they are unable to designate a registered agent for service of process." Letter from Frank Capece, Executive Assistant to the New Jersey Secretary of State, to James H. Freis, Esq. (Oct. 22, 1981). 4 In addition to their facial inapplicability, it is apparent that both of these statutes are administered by the New Jersey Secretary of State—the same office that has advised that foreign corporations are unable to designate a registered agent for service of process without qualifying to do business. See n. 3, supra. 5 Corporations that obtain such certificates apparently must maintain a registered business office, N.J.Stat.Ann. § 14A:4-1 (West Supp.1981-1982), report annually, § 14A:4-5 (West Supp.1981-1982), and pay taxes, § 54:10A-2 (West Supp.1981-1982). In addition, New Jersey apparently also requires such corporations to waive their defense against defending lawsuits in a forum with which they have no minimum contacts, see International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), for all future lawsuits in New Jersey. See N.J.Stat.Ann. § 14A:13-4(1)(d) (West 1969); Litton Industrial Systems, Inc. v. Kennedy Van Saun Corp., 117 N.J.Super. 52, 61, 283 A.2d 551, 556 (1971). Cf. Restatement (Second) of Conflict of Laws § 44 and Comment a (States may exercise jurisdiction over foreign corporations that have authorized an agent to accept service of process to the extent of the agent's authority to accept service, even though no other basis for jurisdiction exists). * I do not understand the Court to be holding that New Jersey has a legitimate interest in attempting to require all corporations to submit in all cases to the jurisdiction of its courts, and that discrimination against unregistered foreign corporations is justified by the State's desire to accomplish this purpose. Since a State may not enact a law that prohibits a foreign corporation from asserting a due process defense to an exercise of personal jurisdiction by a state court, I do not believe that the State may justify a classification that disfavors unregistered foreign corporations on the ground that they refused to take action that would accomplish the same purpose. See Western & Southern Life Ins. Co. v. State Board of Equalization of California, 451 U.S. 648, 674, 101 S.Ct. 2070, 2086, 68 L.Ed.2d 514 (STEVENS, J., dissenting).

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455 U.S. 345 102 S.Ct. 1103 71 L.Ed.2d 199 Malcolm BALDRIGE, Secretary of Commerce, et al., Petitioners,v.Peter SHAPIRO, Essex County Executive. William H. McNICHOLS, Jr., etc., et al., Petitioners, v. Malcolm BALDRIGE, Secretary of the United States Department of Commerce, et al. Nos. 80-1436, 80-1781. Argued Dec. 2, 1981. Decided Feb. 24, 1982. Syllabus These cases present the question whether lists of addresses collected and utilized by the Bureau of the Census are exempt from disclosure either by way of civil discovery or the Freedom of Information Act (FOIA), under the confidentiality provisions of the Census Act, 13 U.S.C. §§ 8 and 9. Section 8(b) allows the Secretary of Commerce to reveal statistical materials "which do not disclose the information reported by, or on behalf of, any particular respondent." Section 9(a) prohibits the Secretary from using the information furnished except for statistical purposes and from making any publication "whereby the data furnished by any particular establishment or individual . . . can be identified"; it also prohibits examination of individual reports by "anyone other than the sworn officers and employees of the Department or bureau or agency thereof." The 1980 census indicated that the areas of Essex County, N.J., and Denver, Colo., among others, had lost population during the 1970's. Both localities challenged the census count under the Census Bureau's local review procedures, asserting that the Bureau had erroneously classified occupied dwellings as vacant and seeking unsuccessfully to obtain access to a portion of the address lists used by the Bureau in conducting its count in their respective jurisdictions. In No. 80-1436, the Essex County Executive filed suit in Federal District Court to compel disclosure under the FOIA of the Bureau's master address list, compiled initially from commercial mailing address lists and census postal checks, and updated through direct responses to census questionnaires, canvassing by Bureau personnel, and in some instances a cross-check with the 1970 census data. The District Court held that the FOIA required disclosure of the requested information. The court rejected the contention that the confidentiality provisions of the Census Act constitute a statutory exception to disclosure within the meaning of Exemption 3 of the FOIA, which provides that disclosure need not be made as to information "specifically exempted from disclosure by statute" if the statute affords the agency no discretion on disclosure, or establishes particular criteria for withholding the data, or refers to the particular types of material to be withheld. The Court of Appeals affirmed. In No. 80-1781, Denver officials filed suit in Federal District Court, seeking a preliminary injunction to require the Bureau's cooperation with the city in verifying its vacancy data. The District Court granted the city's discovery request for vacancy information contained in the Bureau's updated master address registers. However, the Court of Appeals reversed, relying on the language of the Census Act and Congress' intent to protect census information. Held: 1. The requested information in No. 80-1436 is not subject to disclosure under the FOIA. Pp. 352-359. (a) To stimulate public cooperation necessary for an accurate census—providing a basis for apportioning Representatives among the states in Congress, serving an important function in the allocation of federal grants to states based on population, and also providing important data for Congress and ultimately for the private sector—Congress has provided assurances that information furnished by individuals is to be treated as confidential. Title 13 U.S.C. §§ 8(b) and 9(a) explicitly provide for nondisclosure of certain census data, and no discretion is provided to the Census Bureau on whether or not to disclose such data. Thus, §§ 8(b) and 9(a) qualify as withholding statutes under Exemption 3 of the FOIA. Pp. 353-355. (b) The unambiguous language of the confidentiality provisions of the Census Act—focusing on the "information" or "data" that constitutes the statistical compilation—as well as the Act's legislative history, indicates that Congress contemplated that raw data reported by or on behalf of individuals, not just the identity of the individuals, was to be held confidential and not available for disclosure. The master address list sought by Essex County is part of the raw census data intended by Congress to be protected under the Act. And under the Act's clear language, it is not relevant that municipalities seeking data will use it only for statistical purposes. Pp. 355-359. 2. Nor is the requested information in No. 80-1781 subject to disclosure under the discovery provisions of the Federal Rules of Civil Procedure. Under Rule 26(b)(1), if requested information is privileged, it may be withheld even if relevant to the lawsuit and essential to the establishment of plaintiff's claim. A privilege may be created by statute, and the strong policy of nondisclosure under the confidentiality provisions of the Census Act indicates that Congress intended such provisions to constitute a "privilege" within the meaning of the Federal Rules. Pp. 360-362. No. 80-1436, 3rd Cir., 636 F.2d 1210, reversed; No. 80-1781, 10th Cir., 644 F.2d 844, affirmed. Elliott Schulder, Washington, D. C., for petitioners in 80-1436 and for the respondents in 80-1781. David H. Ben-Asher, Orange, N. J., for respondent in 80-1436. George J. Cerrone, Jr., Denver, Colo., for petitioners in 80-1781. Chief Justice BURGER delivered the opinion of the Court. 1 We granted certiorari to determine whether lists of addresses collected and utilized by the Bureau of the Census are exempt from disclosure, either by way of civil discovery or the Freedom of Information Act, under the confidentiality provisions of the Census Act, 13 U.S.C. §§ 8 and 9. 2 * Under Art. I, § 2, cl. 3, of the United States Constitution, responsibility for conducting the decennial census rests with Congress.1 Congress has delegated to the Secretary of Commerce the duty to conduct the decennial census, 13 U.S.C. § 141; the Secretary in turn has delegated this function to the Bureau of the Census. 13 U.S.C. § 21. 3 The 1980 enumeration conducted by the Bureau of the Census indicated that Essex County, N.J., which includes the city of Newark, and Denver, Colo., among other areas, had lost population during the 1970's. This information was conveyed to the appropriate officials in both Essex County and Denver. Under Bureau procedures a city has 10 working days from receipt of the preliminary counts to challenge the accuracy of the census data.2 Both Essex County and Denver challenged the census count under the local review procedures. Both proceeded on the theory that the Bureau had erroneously classified occupied dwellings as vacant, and both sought to compel disclosure of a portion of the address lists used by the Bureau in conducting its count in their respective jurisdictions. * BALDRIGE v. SHAPIRO (No. 80-1436) 4 The Essex County Executive filed suit in the United States District Court for the District of New Jersey to compel the Bureau to release the "master address" register under the Freedom of Information Act (FOIA), 5 U.S.C. § 552.3 The master address register is a listing of such information as addresses, householders' names, number of housing units, type of census inquiry, and, where applicable, the vacancy status of the unit. The list was compiled initially from commercial mailing address lists and census postal checks, and was updated further through direct responses to census questionnaires, pre- and post-enumeration canvassing by census personnel, and in some instances by a cross-check with the 1970 census data. The Bureau resisted disclosure of the master address list, arguing that 13 U.S.C. §§ 8(b) and 9(a) prohibit disclosure of all raw census data pertaining to particular individuals, including addresses. The Bureau argued that it therefore could lawfully withhold the information under the FOIA pursuant to Exemption 3, which provides that the FOIA does not apply where information is specifically exempt from disclosure by statute. 5 U.S.C. § 552(b)(3). 5 The District Court concluded that the FOIA required disclosure of the requested information. The court began its analysis by noting that public policy favors disclosure under the FOIA unless the information falls within the statutory exemptions. The District Court concluded that the Census Act did not provide a "blanket of confidentiality" for all census materials. Rather, the confidentiality limitation is "solely to require that census material be used in furtherance of the Bureau's statistical mission and to ensure against disclosure of any particular individual's response." App. to Pet. for Cert. 10a. The court noted that Essex County did not seek access to individual census reports or information relative to particular individuals, but sought access to the address list exclusively for statistical purposes in conjunction with the Bureau's own program of local review. In addition, the Secretary is authorized by the Census Act to utilize county employees if they are sworn to observe the limitations of the statute. The District Court concluded that the Bureau's claim of confidentiality impeded the goal of accurate and complete enumeration. Finally, the District Court found that the information sought was not derived from the questionnaires received, but rather from data available prior to the census. The District Court ordered the Bureau to make available the address register of all property in the county, with the proviso that all persons using the records be sworn to secrecy.4 The United States Court of Appeals for the Third Circuit affirmed for the reasons stated by the District Court. App. to Pet. for Cert. 1a. Judgment order reported at 636 F.2d 1210 (1980). B McNICHOLS v. BALDRIGE (No. 80-1781) 6 The city of Denver, through its officials, filed suit in the United States District Court for the District of Colorado seeking a preliminary injunction to require the Bureau to cooperate with the city in verifying its vacancy data.5 The District Court did not rule on the preliminary injunction, but instead focused on whether the city of Denver was entitled to the vacancy information contained in the updated master address registers maintained by the Bureau. The District Court granted the city of Denver's discovery request for this information. The court concluded that the city should have access to the information because without the address list the city was denied any meaningful ability to challenge the Bureau's data. In light of what it deemed the important constitutional and statutory rights involved, the District Court concluded that the purposes of § 9 of the Census Act could be maintained without denying the city the right of discovery. The District Court entered a detailed order to protect the confidentiality of the information.6 7 The United States Court of Appeals for the Tenth Circuit reversed. 644 F.2d 844 (1981). The Court of Appeals relied on the "express language" of the statute and on the " 'emphatically expressed intent of Congress to protect census information.' " Id., at 845, quoting Seymour v. Barabba, 182 U.S.App.D.C. 185, 188, 559 F.2d 806, 809 (1977). The court reasoned that Congress has the power to make census information immune from direct discovery or disclosure. The court concluded that Congress has neither made nor implied an exception covering this case. The Court of Appeals also found no indication that Congress is constitutionally required to provide the city with information to challenge the census data. The court concluded that the city of Denver's remedy must lie with Congress. 8 Thus, the United States Court of Appeals for the Third Circuit ordered disclosure of the master address list under the FOIA. App. to Pet. for Cert. 1a. The United States Court of Appeals for the Tenth Circuit denied discovery of similar information, concluding that the data was privileged from disclosure. 644 F.2d 844 (1981). We granted certiorari in these cases to determine whether such information is to be disclosed under either of the requested procedures. 451 U.S. 936, 101 S.Ct. 2015, 68 L.Ed.2d 323 (1981); 452 U.S. 937, 101 S.Ct. 3079, 69 L.Ed.2d 951 (1981). II A. 9 The broad mandate of the FOIA is to provide for open disclosure of public information.7 The Act expressly recognizes, however, that public disclosure is not always in the public interest and consequently provides that agency records may be withheld from disclosure under any one of the nine exemptions defined in 5 U.S.C. § 552(b). Under Exemption 3 disclosure need not be made as to information "specifically exempted from disclosure by statute" if the statute affords the agency no discretion on disclosure, or establishes particular criteria for withholding the data, or refers to the particular types of material to be withheld. The question in Baldrige v. Shapiro, No. 80-1436, is twofold: first, do §§ 8(b) and 9(a) of the Census Act constitute a statutory exception to disclosure within the meaning of Exemption 3; and second, is the requested data included within the protection of §§ 8(b) and 9(a). B 10 Although the national census mandated by Art. I, § 2, of the Constitution fulfills many important and valuable functions for the benefit of the country as a whole, its initial constitutional purpose was to provide a basis for apportioning representatives among the states in the Congress.8 The census today serves an important function in the allocation of federal grants to states based on population. In addition, the census also provides important data for Congress and ultimately for the private sector.9 11 Although Congress has broad power to require individuals to submit responses, an accurate census depends in large part on public cooperation. To stimulate that cooperation Congress has provided assurances that information furnished to the Secretary by individuals is to be treated as confidential. 13 U.S.C. §§ 8(b), 9(a). Section 8(b) of the Census Act provides that subject to specified limitations, "the Secretary [of Commerce] may furnish copies of tabulations and other statistical materials which do not disclose the information reported by, or on behalf of, any particular respondent . . . ." Section 9(a) provides further assurances of confidentiality: 12 "Neither the Secretary, nor any other officer or employee of the Department of Commerce or bureau or agency thereof, may, except as provided in section 8 of this title— 13 "(1) use the information furnished under the provisions of this title for any purpose other than the statistical purposes for which it is supplied; or "(2) make any publication whereby the data furnished by any particular establishment or individual under this title can be identified; or 14 "(3) permit anyone other than the sworn officers and employees of the Department or bureau or agency thereof to examine the individual reports." 15 Sections 8(b) and 9(a) explicitly provide for the nondisclosure of certain census data. No discretion is provided to the Census Bureau on whether or not to disclose the information referred to in §§ 8(b) and 9(a). Sections 8(b) and 9(a) of the Census Act therefore qualify as withholding statutes under Exemption 3.10 Raw census data is protected under the §§ 8(b) and 9(a) exemptions, however, only to the extent that the data is within the confidentiality provisions of the Act. C 16 Essex County and various amici vigorously argue that §§ 8(b) and 9(a) of the Census Act are designed to prohibit disclosure of the identities of individuals who provide raw census data; for this reason, they argue, the confidentiality provisions protect raw data only if the individual respondent can be identified. The unambiguous language of the confidentiality provisions, as well as the legislative history of the Act, however, indicates that Congress plainly contemplated that raw data reported by or on behalf of individuals was to be held confidential and not available for disclosure. 17 We begin first with the language of §§ 8(b) and 9(a). Watt v. Energy Action Educational Foundation, 454 U.S. 151, 102 S.Ct. 205, 70 L.Ed.2d 309 (1981). Section 8(b) allows the Secretary to provide statistical materials "which do not disclose the information reported by, or on behalf of, any particular respondent . . . ." (Emphasis added.) The focus of § 9(a) is also on the information that constitutes the statistical compilation. The Secretary is prohibited from using the "information" except for statistical purposes and is prohibited from publication "whereby the data furnished by any particular establishment or individual under this title can be identified . . . ." (Emphasis added.) 18 The language of each section refers to protection of the "information" or "data" compiled. In addition, the provisions of § 8(b) prohibit disclosure of data provided "by, or on behalf of," any respondent. By protecting data revealed "on behalf of" a respondent, Congress further emphasized that the data itself was to be protected from disclosure. 19 The legislative history also makes clear that Congress was concerned not solely with protecting the identity of individuals. Since 1879 Congress has expressed its concern that confidentiality of data reported by individuals also be preserved. At that time each census taker was required by law to take an oath "not [to] disclose any information contained in the schedules, lists, or statements." Act of Mar. 3, 1879, ch. 195, § 7, 20 Stat. 475, and Act of Apr. 20, 1880, ch. 57, 21 Stat. 75.11 As a result of the detailed questions asked in the 1880 and 1890 censuses, Congress amended the Census Act to broaden the confidentiality protections. Act of Mar. 3, 1899, ch. 419, § 21, 30 Stat. 1020. The law restricted disclosure unless the Director of the Census authorized that the information be revealed. The governor of any state or the chief officer of any municipal government upon request, however, could receive a list of individuals counted within the territory of the jurisdiction. § 30, 30 Stat. 1021. The Director of the Census frequently was asked to disclose information to cities complaining of undercounts. For example, data was revealed to New York City after the 1890 census in order to allow the city to challenge the accuracy of the federal count. House Committee on the Eleventh Census, Re-enumeration of New York City, 51st Cong., 2d Sess. (1890). See also Decennial Census, at 113-138. 20 In 1929 Congress again amended the Census Act and provided the confidentiality provisions of § 9. Act of June 18, 1929, ch. 28, § 11, 46 Stat. 25. The amendment gave the Director of the Census no discretion to release data, regardless of the claimed beneficial effect of disclosure. The confidentiality provisions extended to all information collected by the Bureau of the Census. Decennial Census, at 116. No special access was granted to states or municipalities. In 1976 the confidentiality provision of § 8 was strengthened "to add further protection of privacy" by prohibiting disclosure of information "reported by, or on behalf of, any respondent." S.Rep. No. 94-1256, pp. 3-4 (1976); U.S.Code Cong. & Admin.News 1976, p. 5466. See also H.R.Conf.Rep. No. 94-1719, p. 10 (1976). The prohibitions of disclosure of "material which might disclose information reported by, or on behalf of, any respondent" extends both to "public and private entities," S.Rep. No. 94-1256, supra, at 4, U.S.Code Cong. & Admin.News 1976, p. 5466, further indicating that the municipalities requesting disclosure of raw census data have no special claim to the information. 21 The foregoing history of the Census Act reveals a congressional intent to protect the confidentiality of census information by prohibiting disclosure of raw census data reported by or on behalf of individuals. Subsequent congressional action is consistent with this interpretation. In response to claimed undercounts in the census of 1960 and of 1970, Congress considered, but ultimately rejected, proposals to allow local officials limited access to census data in order to challenge the census count. See H.R. 8871, 95 Cong., 1st Sess. (1977); Hearings on H.R. 8871 before the Subcommittee on Census and Population of the House Committee on Post Office and Civil Service, 95th Cong., 1st Sess. (1977). 22 A list of vacant addresses is part of the raw census data—the information—intended by Congress to be protected. The list of addresses requested by the County of Essex constitutes "information reported by, or on behalf of," individuals responding to the census. The initial list of addresses is taken from prior censuses and mailing lists. This information then is verified both by direct mailings and census enumerators who go to areas not responding. See, e.g., 1980 Census Questionaire, Question No. H4 ("How many living quarters, occupied and vacant, are at this address?"). As with all the census material, the information on vacancies was updated from data obtained from neighbors and others who spoke with the followup census enumerators. The final master address list therefore includes data reported by or on behalf of individuals. 23 Under the clear language of the Census Act it is not relevant that the municipalities seeking the data will use it only for statistical purposes. Section 9(a)(1) permits use of the data only for "the statistical purposes for which it is supplied." There is no indication in the Census Act that the hundreds of municipal governments in the 50 states were intended by Congress to be the "monitors" of the Census Bureau.12 In addition, limiting use of data only for "statistical" purposes in no way indicates that raw data may be revealed outside the strict requirements of the census Act that data be handled by census employees sworn to secrecy.13 24 Because §§ 8(b) and 9(a) of the Census Act constitute withholding statutes under Exemption 3 of the FOIA and because the raw census data in this case was intended to be protected from disclosure within those provisions of the Census Act, the requested information is not subject to disclosure under the FOIA. III 25 The discovery provisions of the Federal Rules of Civil Procedure, similar to the FOIA, are designed to encourage open exchange of information by litigants in federal courts. Unlike the FOIA, however, the discovery provisions under the Federal Rules focus upon the need for the information rather than a broad statutory grant of disclosure.14 Federal Rule of Civil Procedure 26(b)(1) provides for access to all information "relevant to the subject matter involved in the pending action" unless the information is privileged. If a privilege exists, information may be withheld, even if relevant to the lawsuit and essential to the establishment of plaintiff's claim. 26 It is well recognized that a privilege may be created by statute.15 A statute granting a privilege is to be strictly construed so as "to avoid a construction that would suppress otherwise competent evidence." St. Regis Paper Co. v. United States, 368 U.S. 208, 218, 82 S.Ct. 289, 295, 7 L.Ed.2d 240 (1961). In the case of the city of Denver, the central inquiry is whether §§ 8(b) and 9(a) create a privilege so as to protect against disclosure of the raw census data requested.16 27 As noted above, § 8(b) and § 9(a) 9(a) of the Census Act embody explicit congressional intent to preclude all disclosure of raw census data reported by or on behalf of individuals. This strong policy of nondisclosure indicates that Congress intended the confidentiality provisions to constitute a "privilege" within the meaning of the Federal Rules. Disclosure by way of civil discovery would undermine the very purpose of confidentiality contemplated by Congress. One such purpose was to encourage public participation and maintain public confidence that information given to the Census Bureau would not be disclosed. The general public, whose cooperation is essential for an accurate census, would not be concerned with the underlying rationale for disclosure of data that had been accumulated under assurances of confidentiality. Congress concluded in §§ 8(b) and 9(a) that only a bar on disclosure of all raw data reported by or on behalf of individuals would serve the function of assuring public confidence. This was within congressional discretion, for Congress is vested by the Constitution with authority to conduct the census "as they shall by Law direct."17 The wisdom of its classifications is not for us to decide in light of Congress' 180 years' experience with the census process. 28 This is not to say that the city of Denver does not also have important reasons for requesting the raw census data for purposes of its civil suit. A finding of "privilege," however, shields the requested information from disclosure despite the need demonstrated by the litigant. IV 29 We hold that whether sought by way of requests under the FOIA or by way of discovery rules, raw data reported by or on behalf of individuals need not be disclosed. Congress, of course, can authorize disclosure in executing its constitutional obligation to conduct a decennial census. But until Congress alters its clear provisions under §§ 8(b) and 9(a) of the Census Act, its mandate is to be followed by the courts. 30 Accordingly the judgment of the United States Court of Appeals for the Third Circuit in No. 80-1436 is reversed, and the judgment of the United States Court of Appeals for the Tenth Circuit in No. 80-1781 is affirmed. 31 It is so ordered. 1 Article I, § 2, cl. 3, provides: "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. . . ." Article I, § 2, cl. 3, was amended by § 2 of the Fourteenth Amendment to provide: "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed." The Sixteenth Amendment also altered cl. 3 to provide for direct taxation without apportionment among the states and without regard to any census or enumeration. 2 See Revised Local Review Program Information Booklet (Apr.1980), App. in No. 80-1436, pp. 22-48. 3 Under 5 U.S.C. § 552(a)(4)(B), "the district court of the United States in the district in which the complainant resides . . . has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 4 We note in passing that there is no provision in the FOIA for this procedure. 5 Jurisdiction in the District Court for the District of Colorado was invoked under 28 U.S.C. §§ 1331, 1337, 1361, 2201, and 2202, under the Freedom of Information Act, 5 U.S.C. § 552, under 5 U.S.C. §§ 702, 704, and 706, and under U.S.Const., Art. I, § 2, cl. 3. The city argued that as a result of the erroneous undercount, Denver would be underrepresented in Congress and would be deprived of certain federal funds to which it otherwise would be entitled under the federal grant-in-aid programs that distribute funds on the basis of population. The city also argued that it would be underrepresented in the state legislature because under the Colorado Constitution apportionment of state legislative districts is based on the federal census. Colo.Const., Art. V, § 48. The city of Denver originally sought a temporary restraining order to require the Bureau to keep open its Denver offices. The parties agreed that the offices could close so long as the Bureau kept its updated master address lists in Denver. 6 The District Court ordered that (1) the Government must produce the updated master address registers, described as "Follow-up Address Registers" (FAR's), or a list of vacant addresses culled from the FAR's; (2) all names and other identifying references must be eliminated; (3) all city employees with access to the information must take an oath of secrecy; (4) the information must be used only for adjustment of the census; and (5) Bureau officials may at their option accompany city employees as they verify the information. 7 This principle has been reiterated frequently by this Court. See, e.g., Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U.S. 139, 102 S.Ct. 197, 70 L.Ed.2d 298 (1981); NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 220, 98 S.Ct. 2311, 2316, 57 L.Ed.2d 159 (1978); EPA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). 8 As originally enacted the decennial census was to serve both for apportioning representatives and apportioning direct taxes among the states. The ratification of the Sixteenth Amendment in 1913 amended Art. I, § 2, to provide for direct taxation without apportionment. Even the first census takers, who had a relatively small population to deal with, encountered difficulty in taking a national census. 31 The Writings of George Washington 329 (J. Fitzpatrick, ed. 1939) ("Returns of the Census have already been made from several of the States and a tolerably just estimate has been formed now in others, by which it appears that we shall hardly reach four millions; but one thing is certain our real numbers will exceed, greatly, the official returns of them; because the religious scruples of some, would not allow them to give in their lists; the fears of others that it was intended as the foundation of a tax induced them to conceal or diminished theirs, and thro' the indolence of the people, and the negligence of many of the Officers numbers are omitted"); 8 The Writings of Thomas Jefferson 229 (A. Lipscomb ed. 1903) (Aug. 24, 1791, letter to Wm. Carmichael) ("I enclose you a copy of our census. . . . Making very small allowance for omissions, which we know to have been very great, we may safely say we are above four millions"). 9 The information obtained from the national census is used for such varied purposes as computing federal grant-in-aid benefits, drafting of legislation, urban and regional planning, business planning, and academic and social studies. See Subcommittee on Census and Population of the House Committee on Post Office and Civil Service, The Use of Population Data in Federal Assistance Programs, Ser. No. 95-16 (Committee Print compiled by the Library of Congress 1978); S.Rep. No. 94-1256, p. 1 (1976); U.S. Code Cong. & Admin. News 1976, p. 5463. During congressional debates James Madison emphasized the importance of census information beyond the constitutionally designated purposes and encouraged the new Congress to "embrace some other subjects besides the bare enumeration of the inhabitants." "This kind of information, [Madison] observed, all legislatures had wished for; but this kind of information had never been obtained in any country. . . . If the plan was pursued in taking every future census, it would give them an opportunity of marking the progress of the society, and distinguishing the growth of every interest." 13 The Papers of James Madison 8-9 (C. Hobson & R. Rutland eds. 1981) (Debate of Jan. 25, 1790). A bill for obtaining information as described by Mr. Madison passed the House of Representatives but "was thrown out by the Senate as a waste of trouble and supplying materials for idle people to make a book." Letter to Thomas Jefferson, id., at 41. 10 Respondent Shapiro does not dispute this conclusion. See Brief for Respondent in No. 80-1436, p. 8. The legislative history of the FOIA clearly indicates that Congress recognized that the Census Act constituted a specific exemption under Exemption 3. See, e.g., S.Rep. No. 1621, 85th Cong., 2d Sess., 9 (1958); 104 Cong.Rec. 6549-6550 (1958) (remarks of Rep. Moss); 112 Cong. Rec. 13646 (1966) (remarks of Rep. Olsen) ("information . . . or sources of information" given to the Bureau of the Census will be held confidential under Exemption 3); H.R.Rep. No. 1497, 89th Cong., 2d Sess. (1966); U.S.Code Cong. & Admin.News 1966, p. 2418; 122 Cong.Rec. 24211 (1976)(remarks of Reps. Abzug and McCloskey). 11 Concern for confidentiality in census taking was expressed as early as the 1840 census in which each census enumerator was instructed to "consider all communications made to him in the performance of [his] duty, relative to the business of the people, as strictly confidential." Subcommittee on Energy, Nuclear Proliferation and Federal Services of the Senate Committee on Governmental Affairs, The Decennial Census: An Analysis and Review, 96th Cong., 2d Sess., 113 (Committee Print compiled by the Library of Congress (1980)(hereinafter Decennial Census). See also A. Scott, Census, U.S.A. 29 (1968). The 1870 census instructions emphatically stated that "[a]ll disclosures should be treated as strictly confidential, with the exception hereafter to be noted in the case of the mortality schedule. . . ." Decennial Census, at 114. The 1909 revisions of the Census Act stated that "[n]o publication shall be made by the Census Office whereby the data furnished by any particular establishment can be identified. . . ." Act of July 2, 1909, ch. 2, § 25, 36 Stat. 9 (emphasis added). See also Act of Apr. 2, 1924, ch. 80, § 3, 43 Stat. 31; Act of June 18, 1929, ch. 28, § 8, 46 Stat. 23; Act of July 25, 1947, ch. 331, 61 Stat. 458, Act of Aug. 31, 1954, Pub.L. 740, 68 Stat. 1013-1014; Act of Oct. 15, 1962, Pub.L. 87-813, 76 Stat. 922 (overriding decision in St. Regis Paper Co. v. United States, 368 U.S. 208, 82 S.Ct. 289, 7 L.Ed.2d 240 (1961), by prohibiting disclosure of copy of census report retained by business establishment). For a more detailed history of the provisions of confidentiality see C. Kaplan & T. Van Valey, U.S. Dept. of Commerce, Census '80: Continuing the Factfinder Tradition 68-71 (1980). Recognition of the need for some degree of confidentiality of census materials is indicated in the confidentiality provisions of several foreign nations. Canada, France, Germany, Great Britain, Italy, Japan, The Netherlands, and Sweden make some provision for the confidentiality of census materials. See Senate Committee on Post Office and Civil Service, Laws on the Confidentiality of Census Records in Western Europe, Canada, and Japan, 94th Cong., 2d Sess. (Committee Print compiled by the Library of Congress 1976). 12 Congress may well have concluded that the controversy over the "vacant" or "occupied" status of property months after the census was taken could lead to interminable litigation and impair the constitutional and statutory purposes of the census. Approximately 50 lawsuits have been brought by local governments claiming an undercount from the 1980 census. See, e.g., In re 1980 Decennial Census Adjustment Litigation, 506 F.Supp. 648 (Jud.Pam.Mult.Lit. 1981); Carey v. Klutznick, 653 F.2d 732 (CA2), cert. pending sub nom. Carey v. Baldrige, No. 81-752. 13 Although § 9(a)(1) allows use of census data for "statistical" purposes, it remains subject to § 8(b), which prohibits public disclosure of information reported by or on behalf of individuals. 14 The primary purpose of the FOIA was not to benefit private litigants or to serve as a substitute for civil discovery. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143, n. 10, 95 S.Ct. 1504, 1512, n. 10, 44 L.Ed.2d 29 (1975); Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 24, 94 S.Ct. 1028, 1040, 39 L.Ed.2d 123 (1974). 15 Most courts have concluded that an FOIA exemption does not automatically constitute a "privilege" within the meaning of the Federal Rules of Civil Procedure. See, e.g., Frankel v. SEC, 460 F.2d 813, 818 (CA2 1972) (information exempt under FOIA may be obtained through discovery if party's need for information exceeds Government's need for confidentiality). See Toran, Information Disclosure in Civil Actions: The Freedom of Information Act and the Federal Discovery Rules, 49 Geo.Wash.L.Rev. 843, 848-854 (1981). 16 Federal Rule of Evidence 501 provides that "[e]xcept as otherwise required by the Constitution of the United States or provided by Act of Congress . . . the privilege of a witness . . . [or] government . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." (Emphasis added.) 17 It is not unlikely that while checking the Bureau vacancy figures the city of Denver would speak to individuals who had supplied vacancy data to the Bureau. Even though the city might not be able to identify the individuals who originally gave the information, there would nonetheless be the appearance that confidentiality had been breached. Congress has several times rejected proposals designed to assure availability of census records to historians and other legitimate researchers. See, e.g., S. 3279, H.R. 10686, 94th Cong., 2d Sess. (1976). "Concerns about the legislation raised by the Bureau of the Census and others soon made it apparent that benefits gained from the release of census records could be easily offset by a loss of credibility for the census, as well as damage to the reputations of individual citizens." Senate Committee on Post Office and Civil Service, Laws on the Confidentiality of Census Records in Western Europe, Canada, and Japan, 94th Cong., 2d Sess. (Committee Print compiled by the Library of Congress 1976) (Foreword by Sen. McGee, Chairperson).

45

455 U.S. 489 102 S.Ct. 1186 71 L.Ed.2d 362 VILLAGE OF HOFFMAN ESTATES, et al., Appellants,v.FLIPSIDE, HOFFMAN ESTATES, INC. No. 80-1681. Argued Dec. 9, 1981. Decided March 3, 1982. Rehearing Denied April 26, 1982. See 456 U.S. 950, 102 S.Ct. 2023. Syllabus An ordinance of appellant village requires a business to obtain a license if it sells any items that are "designed or marketed for use with illegal cannabis or drugs." Guidelines define the items (such as "roach clips," which are used to smoke cannabis, "pipes," and "paraphernalia"), the sale of which is required to be licensed. Appellee, which sold a variety of merchandise in its store, including "roach clips" and specially designed pipes used to smoke marihuana, upon being notified that it was in possible violation of the ordinance, brought suit in Federal District Court, claiming that the ordinance is unconstitutionally vague and overbroad, and requesting injunctive and declaratory relief and damages. The District Court upheld the ordinance and awarded judgment to the village defendants. The Court of Appeals reversed on the ground that the ordinance is unconstitutionally vague on its face. Held: The ordinance is not facially overbroad or vague but is reasonably clear in its application to appellee. Pp. 494-505. (a) In a facial challenge to the overbreadth and vagueness of an enactment, a court must first determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and should uphold such challenge only if the enactment is impermissibly vague in all of its applications. Pp. 494-495. (b) The ordinance here does not violate appellee's First Amendment rights nor is it overbroad because it inhibits such rights of other parties. The ordinance does not restrict speech as such but simply regulates the commercial marketing of items that the labels reveal may be used for an illicit purpose and thus does not embrace noncommercial speech. With respect to any commercial speech interest implicated, the ordinance's restriction on the manner of marketing does not appreciably limit appellee's communication of information, except to the extent it is directed at commercial activity promoting or encouraging illegal drug use, an activity which, if deemed "speech," is speech proposing an illegal transaction and thus subject to government regulation or ban. It is irrelevant whether the ordinance has an overbroad scope encompassing other persons' commercial speech, since the overbreadth doctrine does not apply to commercial speech. Pp. 495-497. (c) With respect to the facial vagueness challenge, appellee has not shown that the ordinance is impermissibly vague in all of its applications. The ordinance's language "designed . . . for use" is not unconstitutionally vague on its face, since it is clear that such standard encompasses at least an item that is principally used with illegal drugs by virtue of its objective features, i.e., features designed by the manufacturer. Thus, the "designed for use" standard is sufficiently clear to cover at least some of the items that appellee sold, such as "roach clips" and the specially designed pipes. As to the "marketed for use" standard, the guidelines refer to the display of paraphernalia and to the proximity of covered items to otherwise uncovered items, and thus such standard requires scienter on the part of the retailer. Under this test, appellee had ample warning that its marketing activities required a license, and by displaying a certain magazine and certain books dealing with illegal drugs physically close to pipes and colored rolling paper, it was in clear violation of the guidelines, as it was in selling "roach clips." Pp. 499-503. (d) The ordinance's language is sufficiently clear that the speculative danger of arbitrary enforcement does not render it void for vagueness in a pre-enforcement facial challenge. Pp. 503-504. 639 F.2d 373, reversed and remanded. Richard N. Williams, Hoffman Estates, Ill., for appellants. Michael L. Pritzker, Chicago, Ill., for appellee. Justice MARSHALL delivered the opinion of the Court. 1 This case presents a pre-enforcement facial challenge to a drug paraphernalia ordinance on the ground that it is unconstitutionally vague and overbroad. The ordinance in question requires a business to obtain a license if it sells any items that are "designed or marketed for use with illegal cannabis or drugs." Village of Hoffman Estates Ordinance No. 969-1978. The United States Court of Appeals for the Seventh Circuit held that the ordinance is vague on its face. 639 F.2d 373 (1981). We noted probable jurisdiction, 452 U.S. 904, 101 S.Ct. 3028, 69 L.Ed.2d 404 (1981), and now reverse. 2 * For more than three years prior to May 1, 1978, appellee The Flipside, Hoffman Estates, Inc. (Flipside), sold a variety of merchandise, including phonographic records, smoking accessories, novelty devices, and jewelry, in its store located in the village of Hoffman Estates, Ill. (village).1 On February 20, 1978, the village enacted an ordinance regulating drug paraphernalia, to be effective May 1, 1978.2 The ordinance makes it unlawful for any person "to sell any items, effect, paraphernalia, accessory or thing which is designed or marketed for use with illegal cannabis or drugs, as defined by Illinois Revised Statutes, without obtaining a license therefor." The license fee is $150. A business must also file affidavits that the licensee and its employees have not been convicted of a drug-related offense. Moreover, the business must keep a record of each sale of a regulated item, including the name and address of the purchaser, to be open to police inspection. No regulated item may be sold to a minor. A violation is subject to a fine of not less than $10 and not more than $500, and each day that a violation continues gives rise to a separate offense. A series of licensing guidelines prepared by the Village Attorney define "Paper," "Roach Clips," "Pipes," and "Paraphernalia," the sale of which is required to be licensed.3 3 After an administrative inquiry, the village determined that Flipside and one other store appeared to be in violation of the ordinance. The Village Attorney notified Flipside of the existence of the ordinance, and made a copy of the ordinance and guidelines available to Flipside. Flipside's owner asked for guidance concerning which items were covered by the ordinance; the Village Attorney advised him to remove items in a certain section of the store "for his protection," and he did so. App. 71. The items included, according to Flipside's description, a clamp, chain ornaments, an "alligator" clip, key chains, necklaces, earrings, cigarette holders, glove stretchers, scales, strainers, a pulverizer, squeeze bottles, pipes, water pipes, pins, an herb sifter, mirrors, vials, cigarette rolling papers, and tobacco snuff. On May 30, 1978, instead of applying for a license or seeking clarification via the administrative procedures that the village had established for its licensing ordinances,4 Flipside filed this lawsuit in the United States District Court for the Northern District of Illinois. 4 The complaint alleged, inter alia, that the ordinance is unconstitutionally vague and overbroad, and requested injunctive and declaratory relief and damages. The District Court, after hearing testimony, declined to grant a preliminary injunction. The case was tried without a jury on additional evidence and stipulated testimony. The court issued an opinion upholding the constitutionality of the ordinance, and awarded judgment to the village defendants. 485 F.Supp. 400 (1980). 5 The Court of Appeals reversed on the ground that the ordinance is unconstitutionally vague on its face. The court reviewed the language of the ordinance and guidelines and found it vague with respect to certain conceivable applications, such as ordinary pipes or "paper clips sold next to Rolling Stone magazine." 639 F.2d, at 382. It also suggested that the "subjective" nature of the "marketing" test creates a danger of arbitrary and discriminatory enforcement against those with alternative lifestyles. Id., at 384. Finally, the court determined that the availability of administrative review or guidelines cannot cure the defect. Thus, it concluded that the ordinance is impermissibly vague on its face. II 6 In a facial challenge to the overbreadth and vagueness of a law,5 a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.6 If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.7 A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law. 7 The Court of Appeals in this case did not explicitly consider whether the ordinance reaches constitutionally protected conduct and is overbroad, nor whether the ordinance is vague in all of its applications. Instead, the court determined that the ordinance is void for vagueness because it is unclear in some of its applications to the conduct of Flipside and of other hypothetical parties. Under a proper analysis, however, the ordinance is not facially invalid. III 8 We first examine whether the ordinance infringes Flipside's First Amendment rights or is overbroad because it inhibits the First Amendment rights of other parties. Flipside makes the exorbitant claim that the village has imposed a "prior restraint" on speech because the guidelines treat the proximity of drug-related literature as an indicium that paraphernalia are "marketed for use with illegal cannabis or drugs." Flipside also argues that because the presence of drug-related designs, logos, or slogans on paraphernalia may trigger enforcement, the ordinance infringes "protected symbolic speech." Brief for Appellee 25. 9 These arguments do not long detain us. First, the village has not directly infringed the noncommercial speech of Flipside or other parties. The ordinance licenses and regulates the sale of items displayed "with" or "within proximity of" "literature encouraging illegal use of cannabis or illegal drugs," Guidelines, supra n. 3, but does not prohibit or otherwise regulate the sale of literature itself. Although drug-related designs or names on cigarette papers may subject those items to regulation, the village does not restrict speech as such, but simply regulates the commercial marketing of items that the labels reveal may be used for an illicit purpose. The scope of the ordinance therefore does not embrace noncommercial speech. 10 Second, insofar as any commercial speech interest is implicated here, it is only the attenuated interest in displaying and marketing merchandise in the manner that the retailer desires. We doubt that the village's restriction on the manner of marketing appreciably limits Flipside's communication of information8—with one obvious and telling exception. The ordinance is expressly directed at commercial activity promoting or encouraging illegal drug use. If that activity is deemed "speech," then it is speech proposing an illegal transaction, which a government may regulate or ban entirely. Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 563-564, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341 (1980); Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 388, 93 S.Ct. 2553, 2560, 37 L.Ed.2d 669 (1973). Finally, it is irrelevant whether the ordinance has an overbroad scope encompassing protected commercial speech of other persons, because the overbreadth doctrine does not apply to commercial speech. Central Hudson, supra, at 565, n. 8, 100 S.Ct., at 2351, n. 8.9 IV A. 11 A law that does not reach constitutionally protected conduct and therefore satisfies the overbreadth test may nevertheless be challenged on its face as unduly vague, in violation of due process. To succeed, however, the complainant must demonstrate that the law is impermissibly vague in all of its applications. Flipside makes no such showing. 12 The standards for evaluating vagueness were enunciated in Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972): 13 "Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications" (footnotes omitted). 14 These standards should not, of course, be mechanically applied. The degree of vagueness that the Constitution tolerates as well as the relative importance of fair notice and fair enforcement—depends in part on the nature of the enactment. Thus, economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow,10 and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action.11 Indeed, the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process.12 The Court has also expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.13 And the Court has recognized that a scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.14 15 Finally, perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply.15 B 16 This ordinance simply regulates business behavior and contains a scienter requirement with respect to the alternative "marketed for use" standard. The ordinance nominally imposes only civil penalties. However, the village concedes that the ordinance is "quasi-criminal," and its prohibitory and stigmatizing effect may warrant a relatively strict test.16 Flipside's facial challenge fails because, under the test appropriate to either a quasi-criminal or a criminal law, the ordinance is sufficiently clear as applied to Flipside. 17 The ordinance requires Flipside to obtain a license if it sells "any items, effect, paraphernalia, accessory or thing which is designed or marketed for use with illegal cannabis or drugs, as defined by the Illinois Revised Statutes." Flipside expresses no uncertainty about which drugs this description encompasses; as the District Court noted, 485 F.Supp., at 406, Illinois law clearly defines cannabis and numerous other controlled drugs, including cocaine. Ill.Rev.Stat., ch. 561/2, &Par; 703 and 1102(g) (1980). On the other hand, the words "items, effect, paraphernalia, accessory or thing" do not identify the type of merchandise that the village desires to regulate.17 Flipside's challenge thus appropriately focuses on the language "designed or marketed for use." Under either the "designed for use" or "marketed for use" standard, we conclude that at least some of the items sold by Flipside are covered. Thus, Flipside's facial challenge is unavailing. 18 1. "Designed for use" 19 The Court of Appeals objected that "designed . . . for use" is ambiguous with respect to whether items must be inherently suited only for drug use; whether the retailer's intent or manner of display is relevant; and whether the intent of a third party, the manufacturer, is critical, since the manufacturer is the "designer." 639 F.2d, at 380-381. For the reasons that follow, we conclude that this language is not unconstitutionally vague on its face. 20 The Court of Appeals' speculation about the meaning of "design" is largely unfounded. The guidelines refer to "paper of colorful design" and to other specific items as conclusively "designed" or not "designed" for illegal use.18 A principal meaning of "design" is "[t]o fashion according to a plan." Webster's New International Dictionary of the English Language 707 (2d ed. 1957). Cf. Lanzetta v. New Jersey, 306 U.S. 451, 454, n. 3, 59 S.Ct. 618, 619, n. 3, 83 L.Ed. 888 (1939). It is therefore plain that the standard encompasses at least an item that is principally used with illegal drugs by virtue of its objective features, i.e., features designed by the manufacturer. A business person of ordinary intelligence would understand that this term refers to the design of the manufacturer, not the intent of the retailer or customer. It is also sufficiently clear that items which are principally used for nondrug purposes, such as ordinary pipes, are not "designed for use" with illegal drugs. Moreover, no issue of fair warning is present in this case, since Flipside concedes that the phrase refers to structural characteristics of an item.19 21 The ordinance and guidelines do contain ambiguities. Nevertheless, the "designed for use" standard is sufficiently clear to cover at least some of the items that Flipside sold. The ordinance, through the guidelines, explicitly regulates "roach clips." Flipside's co-operator admitted that the store sold such items, see Tr. 26, 30, and the village Chief of Police testified that he had never seen a "roach clip" used for any purpose other than to smoke cannabis. App. 52. The Chief also testified that a specially designed pipe that Flipside marketed is typically used to smoke marihuana. Ibid. Whether further guidelines, administrative rules, or enforcement policy will clarify the more ambiguous scope of the standard in other respects is of no concern in this facial challenge. 22 2. "Marketed for use" 23 Whatever ambiguities the "designed . . . for use" standard may engender, the alternative "marketed for use" standard is transparently clear: it describes a retailer's intentional display and marketing of merchandise. The guidelines refer to the display of paraphernalia, and to the proximity of covered items to otherwise uncovered items. A retail store therefore must obtain a license if it deliberately displays its wares in a manner that appeals to or encourages illegal drug use. The standard requires scienter, since a retailer could scarcely "market" items "for" a particular use without intending that use. 24 Under this test, Flipside had ample warning that its marketing activities required a license. Flipside displayed the magazine High Times and books entitled Marijuana Grower's Guide, Children's Garden of Grass, and The Pleasures of Cocaine, physically close to pipes and colored rolling papers, in clear violation of the guidelines. As noted above, Flipside's co-operator admitted that his store sold "roach clips," which are principally used for illegal purposes. Finally, in the same section of the store, Flipside had posted the sign, "You must be 18 or older to purchase any head supplies."20 Tr. 30. V 25 The Court of Appeals also held that the ordinance provides insufficient standards for enforcement. Specifically, the court feared that the ordinance might be used to harass individuals with alternative lifestyles and views. 639 F.2d, at 384. In reviewing a business regulation for facial vagueness, however, the principal inquiry is whether the law affords fair warning of what is proscribed. Moreover, this emphasis is almost inescapable in reviewing a pre-enforcement challenge to a law. Here, no evidence has been, or could be, introduced to indicate whether the ordinance has been enforced in a discriminatory manner or with the aim of inhibiting unpopular speech. The language of the ordinance is sufficiently clear that the speculative danger of arbitrary enforcement does not render the ordinance void for vagueness. Cf.Papachristou v. City of Jacksonville, 405 U.S. 156, 168-171, 92 S.Ct. 839, 846-848, 31 L.Ed.2d 110 (1972); Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971). 26 We do not suggest that the risk of discriminatory enforcement is insignificant here. Testimony of the Village Attorney who drafted the ordinance, the village President, and the Police Chief revealed confusion over whether the ordinance applies to certain items, as well as extensive reliance on the "judgment" of police officers to give meaning to the ordinance and to enforce it fairly. At this stage, however, we are not prepared to hold that this risk jeopardizes the entire ordinance.21 27 Nor do we assume that the village will take no further steps to minimize the dangers of arbitrary enforcement. The village may adopt administrative regulations that will sufficiently narrow potentially vague or arbitrary interpretations of the ordinance. In economic regulation especially, such administrative regulation will often suffice to clarify a standard with an otherwise uncertain scope. We also find it significant that the village, in testimony below, primarily relied on the "marketing" aspect of the standard, which does not require the more ambiguous item-by-item analysis of whether paraphernalia are "designed for" illegal drug use, and which therefore presents a lesser risk of discriminatory enforcement. "Although it is possible that specific future applications . . . may engender concrete problems of constitutional dimension, it will be time enough to consider any such problems when they arise." Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 52, 86 S.Ct. 1254, 1264, 16 L.Ed.2d 336 (1966).22 VI 28 Many American communities have recently enacted laws regulating or prohibiting the sale of drug paraphernalia. To determine whether these laws are wise or effective is not, of course, the province of this Court. See Ferguson v. Skrupa, 372 U.S. 726, 728-730, 83 S.Ct. 1028, 1029-1031, 10 L.Ed.2d 93 (1963). We hold only that such legislation is not facially overbroad or vague if it does not reach constitutionally protected conduct and is reasonably clear in its application to the complainant. 29 Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. 30 It is so ordered. 31 Justice STEVENS took no part in the consideration or decision of this case. APPENDIX TO OPINION OF THE COURT 32 Village of Hoffman Estates Ordinance No. 969-1978 33 AN ORDINANCE AMENDING THE MUNICIPAL CODE OF THE VILLAGE OF HOFFMAN ESTATES BY PROVIDING FOR REGULATION OF ITEMS DESIGNED OR MARKETED FOR USE WITH ILLEGAL CANNABIS OR DRUGS 34 WHEREAS, certain items designed or marketed for use with illegal drugs are being retailed within the Village of Hoffman Estates, Cook County, Illinois, and 35 WHEREAS, it is recognized that such items are legal retail items and that their sale cannot be banned, and 36 WHEREAS, there is evidence that these items are designed or marketed for use with illegal cannabis or drugs and it is in the best interests of the health, safety and welfare of the citizens of the Village of Hoffman Estates to regulate within the Village the sale of items designed or marketed for use with illegal cannabis or drugs. 37 NOW THEREFORE, BE IT ORDAINED by the President and Board of Trustees of the Village of Hoffman Estates, Cook County, Illinois as follows: Section 1 : That the Hoffman Estates Municipal Code be amended by adding thereto an additional Section, Section 8-7-16, which additional section shall read as follows: 38 Sec. 8-7-16—ITEMS DESIGNED OR MARKETED FOR USE WITH ILLEGAL CANNABIS OR DRUGS A. License Required: 39 It shall be unlawful for any person or persons as principal, clerk, agent or servant to sell any items, effect, paraphernalia, accessory or thing which is designed or marketed for use with illegal cannabis or drugs, as defined by Illinois Revised Statutes, without obtaining a license therefor. Such licenses shall be in addition to any or all other licenses held by applicant. B. Application: 40 Application to sell any item, effect, paraphernalia, accessory or thing which is designed or marketed for use with illegal cannabis or drugs shall, in addition to requirements of Article 8-1, be accompanied by affidavits by applicant and each and every employee authorized to sell such items that such person has never been convicted of a drug-related offense. C. Minors: 41 It shall be unlawful to sell or give items as described in Section 8-7-16A in any form to any male or female child under eighteen years of age. D. Records: 42 Every licensee must keep a record of every item, effect, paraphernalia, accessory or thing which is designed or marketed for use with illegal cannabis or drugs which is sold and this record shall be open to the inspection of any police officer at any time during the hours of business. Such record shall contain the name and address of the purchaser, the name and quantity of the product, the date and time of the sale, and the licensee or agent of the licensee's signature, such records shall be retained for not less than two (2) years. E. Regulations: 43 The applicant shall comply with all applicable regulations of the Department of Health Services and the Police Department. 44 Section 2 : That the Hoffman Estates Municipal Code be amended by adding to Sec. 8-2-1 Fees: Merchants (Products) the additional language as follows: 45 Items designed or marketed for use with illegal cannabis or drugs $150.00 46 Section 3 : Penalty. Any person violating any provision of this ordinance shall be fined not less than ten dollars ($10.00) nor more than five hundred dollars ($500.00) for the first offense and succeeding offenses during the same calendar year, and each day that such violation shall continue shall be deemed a separate and distinct offense. 47 Section 4 : That the Village Clerk be and is hereby authorized to publish this ordinance in pamphlet form. 48 Section 5 : That this ordinance shall be in full force and effect May 1, 1978, after its passage, approval and publication according to law. 49 Justice WHITE, concurring in the judgment. 50 I agree that the judgment of the Court of Appeals must be reversed. I do not, however, believe it necessary to discuss the overbreadth problem in order to reach this result. The Court of Appeals held the ordinance to be void for vagueness; it did not discuss any problem of overbreadth. That opinion should be reversed simply because it erred in its analysis of the vagueness problem presented by the ordinance. 51 I agree with the majority that a facial vagueness challenge to an economic regulation must demonstrate that "the enactment is impermissibly vague in all of its applications." Ante, at 495. I also agree with the majority's statement that the "marketed for use" standard in the ordinance is "sufficiently clear." There is, in my view, no need to go any further: If it is "transparently clear" that some particular conduct is restricted by the ordinance, the ordinance survives a facial challenge on vagueness grounds. 52 Technically, overbreadth is a standing doctrine that permits parties in cases involving First Amendment challenges to government restrictions on noncommercial speech to argue that the regulation is invalid because of its effect on the First Amendment rights of others not presently before the Court. Broadrick v. Oklahoma, 413 U.S. 601, 612-615, 93 S.Ct. 2908, 2915-2917, 37 L.Ed.2d 830 (1973). Whether the appellee may make use of the overbreadth doctrine depends, in the first instance, on whether or not it has a colorable claim that the ordinance infringes on constitutionally protected, noncommercial speech of others. Although appellee claims that the ordinance does have such an effect, that argument is tenuous at best and should be left to the lower courts for an initial determination. 53 Accordingly, I concur in the judgment reversing the decision below. 1 More specifically, the District Court found: "[Flipside] sold literature that included 'A Child's Garden of Grass,' 'Marijuana Grower's Guide,' and magazines such as 'National Lampoon,' 'Rolling Stone,' and 'High Times.' The novelty devices and tobacco-use related items plaintiff displayed and sold in its store ranged from small commodities such as clamps, chain ornaments and earrings through cigarette holders, scales, pipes of various types and sizes, to large water pipes, some designed for individual use, some which as many as four persons can use with flexible plastic tubes. Plaintiff also sold a large number of cigarette rolling papers in a variety of colors. One of plaintiff's displayed items was a mirror, about seven by nine inches with the word 'Cocaine' painted on its surface in a purple color. Plaintiff sold cigarette holders, 'alligator clips,' herb sifters, vials, and a variety of tobacco snuff." 485 F.Supp. 400, 403 (N.D.Ill.1980). 2 The text of the ordinance is set forth in the Appendix to this opinion. 3 The guidelines provide: "LICENSE GUIDELINES FOR ITEMS, EFFECT, PARAPHERNALIA, ACCESSORY OR THING WHICH IS DESIGNED OR MARKETED FOR USE WITH ILLEGAL CANNABIS OR DRUGS "Paper—white paper or tobacco oriented paper not necessarily designed for use with illegal cannabis or drugs may be displayed. Other paper of colorful design, names oriented for use with illegal cannabis or drugs and displayed are covered. "Roach Clips—designed for use with illegal cannabis or drugs and therefore covered. "Pipes—if displayed away from the proximity of nonwhite paper or tobacco oriented paper, and not displayed within proximity of roach clips, or literature encouraging illegal use of cannabis or illegal drugs are not covered; otherwise, covered. "Paraphernalia—if displayed with roach clips or literature encouraging illegal use of cannabis or illegal drugs it is covered." 4 Ordinance No. 932-1977, the Hoffman Estates Administrative Procedure Ordinance, was enacted prior to the drug paraphernalia ordinance, and provides that an interested person may petition for the adoption of an interpretive rule. If the petition is denied, the person may place the matter on the agenda of an appropriate village committee for review. The Village Attorney indicated that no interpretive rules had been adopted with respect to the drug paraphernalia ordinance because no one had yet applied for a license. App. 68. 5 A "facial" challenge, in this context, means a claim that the law is "invalid in toto —and therefore incapable of any valid application." Steffel v. Thompson, 415 U.S. 452, 474, 94 S.Ct. 1209, 1223, 39 L.Ed.2d 505 (1974). In evaluating a facial challenge to a state law, a federal court must, of course, consider any limiting construction that a state court or enforcement agency has proffered. Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972). 6 In making that determination, a court should evaluate the ambiguous as well as the unambiguous scope of the enactment. To this extent, the vagueness of a law affects overbreadth analysis. The Court has long recognized that ambiguous meanings cause citizens to " 'steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked." Baggett v. Bullitt, 377 U.S. 360, 372, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964), quoting Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958); see Grayned, supra, 408 U.S. at 109, 92 S.Ct., at 2299; cf. Young v. American Mini Theatres, Inc., 427 U.S. 50, 58-61, 96 S.Ct. 2440, 2446-2447, 49 L.Ed.2d 310 (1976). 7 "[V]agueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975). See United States v. Powell, 423 U.S. 87, 92-93, 96 S.Ct. 316, 319-320, 46 L.Ed.2d 228 (1975); United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 36, 83 S.Ct. 594, 597-598, 599, 9 L.Ed.2d 561 (1963). "One to whose conduct a statute clearly applies may not successfully challenge it for vagueness." Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2561, 41 L.Ed.2d 439 (1974). The rationale is evident: to sustain such a challenge, the complainant must prove that the enactment is vague " 'not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.' Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971). Such a provision simply has no core." Smith v. Goguen, 415 U.S. 566, 578, 94 S.Ct. 1242, 1249, 39 L.Ed.2d 605 (1974). 8 Flipside explained that it placed items that the village considers drug paraphernalia in locations near a checkout counter because some are "point of purchase" items and others are small and apt to be shoplifted. App. 43. Flipside did not assert that its manner of placement was motivated in any part by a desire to communicate information to its customers. 9 Flipside also argues that the ordinance is "overbroad" because it could extend to "innocent" and "lawful" uses of items as well as uses with illegal drugs. Brief for Appellee 10, 33-35. This argument seems to confuse vagueness and overbreadth doctrines. If Flipside is objecting that it cannot determine whether the ordinance regulates items with some lawful uses, then it is complaining of vagueness. We find that claim unpersuasive in this pre-enforcement facial challenge. See infra, at 497-504. If Flipside is objecting that the ordinance would inhibit innocent uses of items found to be covered by the ordinance, it is complaining of denial of substantive due process. The latter claim obviously lacks merit. A retailer's right to sell smoking accessories, and a purchaser's right to buy and use them, are entitled only to minimal due process protection. Here, the village presented evidence of illegal drug use in the community. App. 37. Regulation of items that have some lawful as well as unlawful uses is not an irrational means of discouraging drug use. See Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124-125, 98 S.Ct. 2207, 2213-2214, 57 L.Ed.2d 91 (1978). The hostility of some lower courts to drug paraphernalia laws and particularly to those regulating the sale of items that have many innocent uses, see, e.g., 639 F.2d 373, 381-383 (1981); Record Revolution No. 6, Inc. v. City of Parma, 638 F.2d 916, 928 (CA6 1980), vacated and remanded, 451 U.S. 1013, 101 S.Ct. 2998, 69 L.Ed.2d 384 (1981)—may reflect a belief that these measures are ineffective in stemming illegal drug use. This perceived defect, however, is not a defect of clarity. In the unlikely event that a state court construed this ordinance as prohibiting the sale of all pipes, of whatever description, then a seller of corncob pipes could not complain that the law is unduly vague. He could, of course, object that the law was not intended to cover such items. 10 Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972) (dictum; collecting cases). 11 See, e.g., United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). Cf. Smith v. Goguen, 415 U.S., at 574, 94 S.Ct., at 1247. 12 See Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 49, 86 S.Ct. 1254, 1263, 16 L.Ed.2d 336 (1966); McGowan v. Maryland, 366 U.S. 420, 428, 81 S.Ct. 1101, 1106, 6 L.Ed.2d 393 (1961). 13 See Barenblatt v. United States, 360 U.S. 109, 137, 79 S.Ct. 1081, 1098, 3 L.Ed.2d 1115 (1959) (Black, J., with whom Warren, C.J., and Douglas, J., joined, dissenting); Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840 (1948). 14 See, e.g., Colautti v. Franklin, 439 U.S. 379, 395, 99 S.Ct. 675, 685, 58 L.Ed.2d 596 (1979); Boyce Motor Lines v. United States, 342 U.S. 337, 342, 72 S.Ct. 329, 331, 96 L.Ed. 367 (1952); Screws v. United States, 325 U.S. 91, 101-103, 65 S.Ct. 1031, 1035-1036, 89 L.Ed. 1495 (1945) (plurality opinion). See Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 87, n. 98 (1960). 15 See, e.g., Papachristou, supra; Grayned, 408 U.S., at 109, 92 S.Ct., at 2298. 16 The village stipulated that the purpose of the ordinance is to discourage use of the regulated items. App. 33. Moreover, the prohibitory and stigmatizing effects of the ordinance are clear. As the Court of Appeals remarked, "few retailers are willing to brand themselves as sellers of drug paraphernalia, and few customers will buy items with the condition of signing their names and addresses to a register available to the police." 639 F.2d, at 377. The proposed register is entitled, "Retail Record for Items Designed or Marketed for Use with Illegal Cannabis or Drugs." Record, Complaint, App. B. At argument, counsel for the village admitted that the ordinance is "quasi-criminal." Tr. of Oral Arg. 4-5. 17 The District Court apparently relied principally on the growing vernacular understanding of "paraphernalia" as drug-related items, and therefore did not separately analyze the meaning of "designed or marketed for use." 485 F.Supp., at 405-407. We agree with the Court of Appeals that a regulation of "paraphernalia" alone would not provide much warning of the nature of the items regulated. 639 F.2d, at 380. 18 The guidelines explicitly provide that "white paper . . . may be displayed," and that "Roach Clips" are "designed for use with illegal cannabis or drugs and therefore covered" (emphasis added). The Court of Appeals criticized the latter definition for failing to explain what a "roach clip" is. This criticism is unfounded because that technical term has sufficiently clear meaning in the drug paraphernalia industry. Without undue burden, Flipside could easily determine the meaning of the term. See American Heritage Dictionary of the English Language 1122 (1980) (defining "roach" as "[t]he butt of a marijuana cigarette"); R. Lingeman, Drugs from A to Z: A Dictionary 213-214 (1969) (defining "roach" and "roach holder"). Moreover, the explanation that a retailer may display certain paper "not necessarily designed for use" clarifies that the ordinance at least embraces items that are necessarily designed for use with cannabis or illegal drugs. 19 "It is readily apparent that under the Hoffman Estates scheme, the 'designed for use' phrase refers to the physical characteristics of items deemed per se fashioned for use with drugs; and that, if any intentional conduct is implicated by the phrase, it is the intent of the 'designer' (i.e. patent holder or manufacturer) whose intent for an item or 'design' is absorbed into the physical attributes, or structural 'design' of the finished product." Brief for Appellee 42-43. Moreover, the village President described drug paraphernalia as items "[m]anufactured for that purpose and marketed for that purpose." App. 82 (emphasis added). 20 The American Heritage Dictionary of the English Language 606 (1980) gives the following alternative definition of "head": "Slang. One who is a frequent user of drugs." 21 The theoretical possibility that the village will enforce its ordinance against a paper clip placed next to Rolling Stone magazine, 639 F.2d, at 382, is of no due process significance unless the possibility ripens into a prosecution. 22 The Court of Appeals also referred to potential Fourth Amendment problems resulting from the recordkeeping requirement, which "implies that a customer who purchases an item 'designed or marketed for use with illegal cannabis or drugs' intends to use the item with illegal cannabis or drugs. A further implication could be that a customer is subject to police scrutiny or even to a search warrant on the basis of the purchase of a legal item." Id., at 384. We will not address these Fourth Amendment issues here. In a pre-enforcement challenge it is difficult to determine whether Fourth Amendment rights are seriously threatened. Flipside offered no evidence of a concrete threat below. In a postenforcement proceeding Flipside may attempt to demonstrate that the ordinance is being employed in such an unconstitutional manner, and that it has standing to raise the objection. It is appropriate to defer resolution of these problems until such a showing is made.

23

455 U.S. 457 102 S.Ct. 1169 71 L.Ed.2d 335 RAILWAY LABOR EXECUTIVES' ASSOCIATION, Appellant,v.William M. GIBBONS, Trustee, et al. RAILWAY LABOR EXECUTIVES' ASSOCIATION, Appellant, v. William M. GIBBONS, Trustee, etc., et al. Nos. 80-415, 80-1239. Argued Dec. 2, 1981. Decided March 2, 1982. Rehearing Denied April 19, 1982. See 456 U.S. 939, 102 S.Ct. 1997. Syllabus In 1975, the Chicago, Rock Island and Pacific Railroad Co. (Rock Island) petitioned the District Court for reorganization under the Bankruptcy Act of 1898, and thereafter continued operation under the protection of that Act until September 1979, when it ceased operation as a result of a labor strike. The District Court concluded that reorganization was not possible and directed appellee Trustee of Rock Island's estate (hereafter appellee) to liquidate the estate's assets. On June 2, 1980, the reorganization court ordered abandonment of the Rock Island system and concluded that no claim or arrangement "for employee labor protection payable out of the assets of the Debtor's estate is allowed or required by this Court." However, three days before the court's order, the Rock Island Railroad Transition and Employee Assistance Act (RITA) was signed into law. Under §§ 106 and 110 of the statute, appellee must pay benefits of up to $75 million to those Rock Island employees who are not hired by other carriers, and the United States guarantees Rock Island's employee protection obligations. The statute also requires that such obligations must be considered administrative expenses of the Rock Island estate for purposes of determining the priority of the employees' claims to the estate's assets. On June 5, 1980, a complaint was filed in the reorganization court challenging the constitutionality of RITA and seeking injunctive relief. On June 9, the court issued a preliminary injunction against enforcement of §§ 106 and 110, holding that those provisions constituted an uncompensated taking of private property (Rock Island's creditors' interests in the estate's assets) for a public purpose in violation of the Just Compensation Clause of the Fifth Amendment. Pursuant to 28 U.S.C. § 1252, the District Court's order was appealed to this Court (No. 80-415). Congress responded to the District Court's injunction by enacting § 701 of the Staggers Rail Act of 1980, which re-enacted §§ 106 and 110 of RITA and added a provision seeking to avoid any implication that appellee and creditors had been deprived of any Tucker Act remedy otherwise available to pursue their takings claim against the United States. Thereafter, the reorganization court denied a motion of appellant and the United States to vacate its June 9 injunction on the asserted ground that it was rendered moot by the passage of the Staggers Act, and issued a new order enjoining implementation of the labor protection provisions of RITA, as amended and re-enacted by the Staggers Act. This order was appealed to the Court of Appeals pursuant to § 124(a)(1) of RITA, as added by the Staggers Act. The Court of Appeals affirmed, and an appeal was then taken to this Court (No. 80-1239). Held: 1. The June 9 injunction was rendered moot by the enactment of the Staggers Act, and accordingly the judgment of the District Court is vacated and it is ordered to vacate the injunction. P. 465. 2. The Court of Appeals' judgment is affirmed in No. 80-1239 because RITA, as amended by the Staggers Act, is repugnant to Art. I, § 8, cl. 4, of the Constitution, which empowers Congress to enact "uniform Laws on the subject of Bankruptcies throughout the United States." Pp. 465-473. (a) The labor protection provisions of RITA are an exercise of Congress' power under the Bankruptcy Clause, rather than under the Commerce Clause. Although the subject of bankruptcies is incapable of final definition, "bankruptcy" has been defined as the "subject of the relations between an insolvent or nonpaying or fraudulent debtor and his creditors, extending to his and their relief." Wright v. Union Central Ins. Co., 304 U.S. 502, 513-514, 58 S.Ct. 1025, 1032, 82 L.Ed. 1490. By its terms, the subject matter of RITA is the relationship between a bankrupt railroad and its creditors; Congress did nothing less than to prescribe the manner in which Rock Island's property is to be distributed among its creditors. The events surrounding RITA's passage, as well as its legislative history, also indicate that Congress was exercising its powers under the Bankruptcy Clause. Pp. 465-468. (b) The Bankruptcy Clause's uniformity requirement does not prohibit Congress from distinguishing among classes of debtors, or from treating railroad bankruptcies as a distinctive problem. Nor does it deny Congress power to fashion legislation to resolve geographically isolated problems. However, RITA is not a response either to the particular problems of major railroad bankruptcies or to any geographically isolated problem. By its terms, RITA applies to only one regional bankrupt railroad; only Rock Island's creditors are affected by RITA's employee protection provisions and only Rock Island employees may take benefit of the arrangement. The language of the Bankruptcy Clause itself compels the conclusion that such a bankruptcy law is not within Congress' power to enact. Although meager, the debate in the Constitutional Convention regarding the Clause also supports the conclusion that the uniformity requirement prohibits Congress from enacting bankruptcy laws that specifically apply to the affairs of only one named regional debtor. Pp. 468-473. No. 80-415, vacated and remanded; No. 80-1239, 645 F.2d 74, affirmed. John O'B. Clarke, Jr., Washington, D. C., for appellant. Elinor H. Stillman, Washington, D. C., for federal appellees in support of the appellant. Daniel R. Murray, Chicago, Ill., for non-federal appellees. Justice REHNQUIST delivered the opinion for the Court. 1 In March 1975, the Chicago, Rock Island and Pacific Railroad Co. (Rock Island) petitioned the United States District Court for the Northern District of Illinois for reorganization under § 77 of the Bankruptcy Act of 1898, as added, 47 Stat. 1474, and amended, 11 U.S.C. § 205. Under the protection of § 77, the Rock Island continued to operate for approximately four and one-half years until it ceased all operations in September 1979 as a result of a labor strike that had depleted its cash reserves. Pursuant to 49 U.S.C. § 11125 (1976 ed., Supp.IV), the Interstate Commerce Commission (ICC) directed the Kansas City Terminal Railway Co. to provide rail service over the Rock Island lines. On January 25, 1980, the reorganization court concluded that reorganization was not possible. It then directed the Trustee of the Rock Island estate to prepare a plan for liquidation, and to continue planning for the cessation of rail operations upon the March 1980 expiration of the ICC's directed service order. App. 239a-240a. Since the entry of the January 25, 1980, order, the Trustee has been liquidating the assets of the Rock Island estate. 2 On March 4, 1980, various railroads and labor organizations representing Rock Island employees reached an agreement as to Rock Island employees hired by carriers acquiring the Rock Island's trackage. The agreement covered such matters as hiring preferences, monetary protection, and seniority, but it did not cover those Rock Island employees who are not employed by acquiring carriers. 3 On April 14, 1980, the Rock Island Trustee petitioned the reorganization court to confirm the Rock Island's abandonment of all rail lines and operations. The reorganization court referred the petition to the ICC for its recommendation. On May 23, the ICC concluded that the Rock Island's abandonment and dissolution as an operating railroad was necessary. 4 On June 2, the reorganization court ordered the total abandonment of the Rock Island system and the discontinuance of its service. The court found that to order the Rock Island to continue its operations indefinitely at a loss for the public's benefit would violate the "Fifth Amendment rights of those who have a security interest in the enterprise. Brooks-Scanlon Co. v. Railroad Commission, 251 U.S. 396 [40 S.Ct. 183, 64 L.Ed. 323] (1920)." Id., at 270a. The reorganization court also concluded that "no claim or arrangement of any kind or nature for employee labor protection payable out of the assets of the Debtor's estate is allowed or required by this Court" pursuant to § 17(a) of the Milwaukee Railroad Restructuring Act (MRRA), Pub.L. 96-101, 93 Stat. 744, 45 U.S.C. § 915(a) (1976 ed., Supp.IV).1 App. 271a. The court reasoned that § 17(a) of the MRRA does not apply to a total, systemwide abandonment of a railroad. App. 263a-264a. 5 Congress responded to the crisis resulting from this demise of the Rock Island by enacting the Rock Island Railroad Transition and Employee Assistance Act (RITA), Pub.L.96-254, 94 Stat. 399, 45 U.S.C. § 1001 et seq. (1976 ed., Supp.IV). The President signed the Act into law on May 30, 1980, three days before the reorganization court's abandonment order. At issue in these cases are RITA's employee protections provisions. Sections 1062 and 1103 require the Rock Island Trustee to provide economic benefits of up to $75 million to those Rock Island employees who are not hired by other carriers.4 45 U.S.C. §§ 1005, 1008. Benefits must be paid from the estate's assets. The employee benefit obligations must be considered administrative expenses of the Rock Island estate for purposes of determining the priority of the employees' claims to the assets of the estate upon liquidation. 6 On June 5, 1980, appellees filed a complaint in the reorganization court seeking to declare RITA unconstitutional and to enjoin its enforcement. On June 9, the reorganization court issued a preliminary injunction prohibiting the enforcement of §§ 106 and 110 of RITA. Although it suggested that RITA might have other constitutional infirmities, the court concluded that RITA's employee protection provisions constituted an uncompensated taking of private property for a public purpose in violation of the Just Compensation Clause of the Fifth Amendment. The court reasoned: "[T]he Rock Island is a bankrupt corporation with no more operations, nothing left but assets and creditors and liquidation. Whatever obligations it may have to labor, it must arrive out of a contract that it had with labor, and any appropriate claims of labor under existing bankruptcy law is under the Railroad Retirement Act or any other statute which operates to fix the rights of labor . . . But, these are all based upon existing law, existing rights, existing contracts, and that Congress believes it can legislate a $75 million labor protection burden on the assets of the Rock Island comes to me as a startling concept." App. 153a. Since it determined that the Rock Island is no longer subject to the obligations of an operating railroad, the court concluded that the Rock Island creditors' and bondholders' interests in the estate's remaining assets may not be taken to serve the public's interest in providing economic protection for displaced employees. Id., at 154a. Appellant appealed to this Court pursuant to 28 U.S.C. § 1252 (No. 80-415). 7 Congress responded to the reorganization court's injunction by enacting § 701 of the Staggers Rail Act of 1980, Pub.L. 96-448, 94 Stat. 1959. With certain modifications,5 § 701 of the Staggers Act re-enacted RITA §§ 106 and 110. The Staggers Act also added § 124 to RITA, 45 U.S.C. § 1018 (1976 ed., Supp.IV), which sought to avoid any implication that it had deprived appellees of any Tucker Act remedy otherwise available for the Trustee and creditors to pursue their takings claim against the United States.6 The Staggers Act was signed into law on October 14, 1980. 8 Six days previously, appellant and the United States had moved the reorganization court to vacate its June 9 injunction on the basis that the passage of the Staggers Act rendered the injunction moot. In addition, it was argued that no irreparable injury could be shown because the Staggers Act amendments provided that a remedy under the Tucker Act, 28 U.S.C. § 1346, would be available if the labor protection provisions were found to constitute a taking. On October 15, the reorganization court denied the motion to vacate and issued a new order enjoining implementation of the labor protection provisions of the "Rock Island Act, as amended and re-enacted by the Staggers Rail Act." App., Juris.Statement in No. 80-1239, p. 6a. Pursuant to § 124(a)(1) of RITA, as added by the Staggers Act, 45 U.S.C. § 1018(a)(1) (1976 ed., Supp.IV),7 appellant and the United States appealed this order to the Court of Appeals forthe Seventh Circuit. The Court of Appeals affirmed without opinion by an equally divided vote. In re Chicago, R.I. & P.R. Co., 645 F.2d 74 (1980) (en banc). 9 This Court noted probable jurisdiction in No. 80-1239 and postponed the question of jurisdiction in No. 80-415 until our hearing the case on the merits. 451 U.S. 936, 101 S.Ct. 2014, 68 L.Ed.2d 322 (1981). In No. 80-415 we order the District Court for the Northern District of Illinois to vacate its injunction of June 9, 1980.8 We affirm in No. 80-1239 because we conclude that RITA, as amended by the Staggers Act, is repugnant to Art. I, § 8, cl. 4, the Bankruptcy Clause, of the Constitution. We therefore find it unnecessary to determine whether the employee protections provisions of RITA violate any other provision of the Constitution.9 10 Article I, § 8, cl. 4, of the United States Constitution provides that Congress shall have power to "establish . . . uniform Laws on the subject of Bankruptcies throughout the United States." It is necessary first to determine whether the labor protection provisions of amended RITA are an exercise of Congress' power under the Bankruptcy Clause, as contended by appellees, or under the Commerce Clause, as contended by appellant and the United States. Distinguishing a congressional exercise of power under the Commerce Clause from an exercise under the Bankruptcy Clause is admittedly not an easy task, for the two Clauses are closely related. As James Madison observed, "[t]he power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different States, that the expediency of it seems not likely to be drawn into question." The Federalist No. 42, p. 285 (N.Y. Heritage Press 1945). See Sturges v. Crowninshield, 4 Wheat. 122, 195, 17 U.S. 122, 195, 4 L.Ed. 529 (1819) (Marshall, C. J.) ("The bankrupt law is said to grow out of the exigencies of commerce"). 11 Although we have noted that "[t]he subject of bankruptcies is incapable of final definition," we have previously defined "bankruptcy" as the "subject of the relations between an insolvent or nonpaying or fraudulent debtor and his creditors, extending to his and their relief." Wright v. Union Central Life Ins. Co., 304 U.S. 502, 513-514, 58 S.Ct. 1025, 1031-1032, 82 L.Ed. 1490 (1938). See Continental Illinois National Bank & Trust Co. v. Chicago, R.I. & P.R. Co., 294 U.S. 648, 673, 55 S.Ct. 595, 605, 79 L.Ed. 1110 (1935). Congress' power under the Bankruptcy Clause "contemplate[s] an adjustment of a failing debtor's obligations." Ibid. This power "extends to all cases where the law causes to be distributed, the property of the debtor among his creditors." Hanover National Bank v. Moyses, 186 U.S. 181, 186, 22 S.Ct. 857, 860, 46 L.Ed. 1113 (1902). It "includes the power to discharge the debtor from his contracts and legal liabilities, as well as to distribute his property. The grant to Congress involves the power to impair the obligation of contracts, and this the States were forbidden to do." Id., at 188, 22 S.Ct. at 860. 12 An examination of the employee protection provisions of RITA, we think, demonstrates that RITA is an exercise of Congress' power under the Bankruptcy Clause. Section 106 authorizes the ICC to impose upon the Rock Island estate "a fair and equitable" employee protection arrangement. After such an employee protection arrangement is imposed, "the bankruptcy court shall immediately authorize and direct the Rock Island trustee to . . . immediately implement such arrangement." § 106(c), 45 U.S.C. § 1005(c) (1976 ed., Supp.IV). Section 106(e)(2) provides that employee protection benefits shall be paid from Rock Island's assets and employee claims shall be treated as administrative expenses of the Rock Island estate. 45 U.S.C. § 1005(e)(2) (1976 ed., Supp.IV). Section 108(a) provides that any employee who elects to receive benefits under § 106 "shall be deemed to waive any employee protection benefits otherwise available to such employee" under the Bankruptcy Act, subtitle IV of Title 49 of the United States Code, or any applicable contract or agreement. 45 U.S.C. § 1007(a) (1976 ed., Supp.IV). Claims for "otherwise available" benefits are not accorded priority as an administrative expense of the estate. § 1007(c). Under § 110, the United States guarantees the Rock Island's employee protections obligations. 45 U.S.C. § 1008(a) (1976 ed., Supp.IV). As with the employee protection obligation itself, the guarantee is treated as an administrative expense of the Rock Island estate. § 1008(b). 13 In sum, RITA imposes upon a bankrupt railroad the duty to pay large sums of money to its displaced employees, and then establishes a mechanism through which these "obligations" are to be satisfied. The Act provides that the claims of these employees are to be accorded priority over the claims of Rock Island's commercial creditors, bondholders, and shareholders. It follows that the subject matter of RITA is the relationship between a bankrupt railroad and its creditors. See Wright v. Union Central Life Ins. Co., supra, 304 U.S. at 513-514, 58 S.Ct., at 1032. The Act goes as far as to alter the relationship among the claimants to the Rock Island estate's remaining assets. In enacting RITA, Congress did nothing less than to prescribe the manner in which the property of the Rock Island estate is to be distributed among its creditors. 14 The events surrounding the passage of RITA, as well as its legislative history, indicate that Congress was exercising its powers under the Bankruptcy Clause. In RITA, Congress was responding to the crisis resulting from the demise of the Rock Island as an operating entity. The Act was passed almost five years after the Rock Island had initiated reorganization proceedings under § 77 of the Bankruptcy Act, and approximately 10 months after a strike had rendered the Rock Island unable to pay its operating expenses. In addition to providing for the continuation of the Rock Island under a directed service order until its lines could be acquired by other carriers, Congress sought to provide displaced employees with economic protection. Congress wanted to make liquidation of a railroad costly for the estate. As the House Conference Report explains, "it is the intention of Congress that employee protection be imposed in bankruptcy proceedings involving major rail carriers, for to do otherwise would be to promote liquidations, to the detriment of the employees and the public interest." H.R.Conf.Rep.No. 96-1430, pp. 138-139 (1980), U.S.Code Cong. & Admin.News 1980, pp. 3978, 4170. Moreover, Congress was attempting to eliminate the confusion that existed at the time as to whether the labor protection provisions of the Interstate Commerce Act, 49 U.S.C. § 11347 (1976 ed., Supp.IV), applied to railroads that were in liquidation proceedings and arguably had no remaining common carrier responsibilities. See 126 Cong.Rec. 4870 (1980) (remarks of Sen. Kassebaum). In RITA, Congress intended that a labor protection arrangement be included as a part of the liquidation of the Rock Island estate. 15 We do not understand either appellant or the United States to argue that Congress may enact bankruptcy laws pursuant to its power under the Commerce Clause. Unlike the Commerce Clause, the Bankruptcy Clause itself contains an affirmative limitation or restriction upon Congress' power: bankruptcy laws must be uniform throughout the United States. Such uniformity in the applicability of legislation is not required by the Commerce Clause. Hodel v. Indiana, 452 U.S. 314, 332, 101 S.Ct. 2376, 2387, 69 L.Ed.2d 40 (1981); Secretary of Agriculture v. Central Roig Refining Co., 338 U.S. 604, 616, 70 S.Ct. 403, 409, 94 L.Ed. 381 (1950) (distinguishing the Commerce Clause from Art. I, § 8, cl. 4). Thus, if we were to hold that Congress had the power to enact nonuniform bankruptcy laws pursuant to the Commerce Clause, we would eradicate from the Constitution a limitation on the power of Congress to enact bankruptcy laws. It is therefore necessary for us to determine the nature of the uniformity required by the Bankruptcy Clause. 16 Pursuant to Art. I, § 8, cl. 4, of the Constitution, Congress has power to enact bankruptcy laws that are uniform throughout the United States. Prior to today, this Court has never invalidated a bankruptcy law for lack of uniformity. The uniformity requirement is not a straightjacket that forbids Congress to distinguish among classes of debtors, nor does it prohibit Congress from recognizing that state laws do not treat commercial transactions in a uniform manner. A bankruptcy law may be uniform and yet "may recognize the laws of the State in certain particulars, although such recognition may lead to different results in different States." Stellwagen v. Clum, 245 U.S. 605, 613, 38 S.Ct. 215, 217, 62 L.Ed. 507 (1918). Thus, uniformity does not require the elimination of any differences among the States in their laws governing commercial transactions. Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 172, 67 S.Ct. 237, 244, 91 L.Ed. 162 (1946) (Frankfurter, J., concurring). In Hanover National Bank v. Moyses, 186 U.S., at 189-190, 22 S.Ct., at 861, this Court held that Congress can give effect to the allowance of exemptions prescribed by state law without violating the uniformity requirement. The uniformity requirement, moreover, permits Congress to treat "railroad bankruptcies as a distinctive and special problem" and "does not deny Congress power to take into account differences that exist between different parts of the country, and to fashion legislation to resolve geographically isolated problems." [Blanchette v. Connecticut General Ins. Corps.] Regional Railroad Reorganization Act Cases, 419 U.S. 102, 159, 95 S.Ct. 335, 366, 42 L.Ed.2d 320 (1974) (3R Act Cases ). In the 3R Act Cases, we upheld Congress' response to the existing rail transportation crisis in the Northeast. Since no railroad reorganization proceeding was then pending outside of the region defined by the Regional Railroad Reorganization Act of 1973 (3R Act), 87 Stat. 985, 45 U.S.C. § 701 et seq., the Act in fact operated uniformly upon all railroads then in bankruptcy proceedings. 17 But a quite different sort of "uniformity" question is presented in these cases. By its terms, RITA applies to only one regional bankrupt railroad.10 Only Rock Island's creditors are affected by RITA's employee protection provisions and only employees of the Rock Island may take benefit of the arrangement. Unlike the situation in the 3R Act Cases, there are other railroads that are currently in reorganization proceedings,11 but these railroads are not affected by the employee protection provisions of RITA. The conclusion is thus inevitable that RITA is not a response either to the particular problems of major railroad bankruptcies or to any geographically isolated problem: it is a response to the problems caused by the bankruptcy of one railroad. The employee protection provisions of RITA cover neither a defined class of debtors nor a particular type of problem, but a particular problem of one bankrupt railroad. Albeit on a rather grand scale, RITA is nothing more than a private bill such as those Congress frequently enacts under its authority to spend money.12 18 The language of the Bankruptcy Clause itself compels us to hold that such a bankruptcy law is not within the power of Congress to enact. A law can hardly be said to be uniform throughout the country if it applies only to one debtor and can be enforced only by the one bankruptcy court having jurisdiction over that debtor. In re Sink, 27 F.2d 361, 362 (WD Va.1928), appeal dism'd per stipulation, 30 F.2d 1019 (CA4 1929). As the legislative history to the Staggers Act indicates, supra, at 468, Congress might deem it sound policy to impose labor protection obligations in all bankruptcy proceedings involving major railroads. By its specific terms, however, RITA applies to only one regional bankrupt railroad, and cannot be said to apply uniformly even to major railroads in bankruptcy proceedings throughout the United States. The employee protection provisions of RITA therefore cannot be said to "apply equally to all creditors and all debtors." 3R Act Cases, supra, 419 U.S. at 160, 95 S.Ct., at 367. 19 Although the debate in the Constitutional Convention regarding the Bankruptcy Clause was meager, we think it lends some support to our conclusion that the uniformity requirement of the Clause prohibits Congress from enacting bankruptcy laws that specifically apply to the affairs of only one named debtor. 20 The subject of bankruptcy was first introduced on August 29, 1787, by Charles Pinckney during discussion of the Full Faith and Credit Clause. Pinckney proposed the following grant of authority to Congress: "To establish uniform laws upon the subject of bankruptcies, and respecting the damages arising on the protest of foreign bills of exchange." 2 M. Farrand, Records of the Federal Convention of 1787, p. 447 (1911). Two days later, John Rutledge recommended that the following be added to Congress' powers: "To establish uniform laws on the subject of bankruptcies." Id., at 483. The Bankruptcy Clause was adopted on September 3, 1787, with only Roger Sherman of Connecticut voting against. Id., at 489.13 21 Prior to the drafting of the Constitution, at least four States followed the practice of passing private Acts to relieve individual debtors. Nadelmann, On the Origin of the Bankruptcy Clause, 1 Am.J.Legal Hist. 215, 221-223 (1957). Given the sovereign status of the States, questions were raised as to whether one State had to recognize the relief given to a debtor by another State. See Millar v. Hall, 1 Dall. 229, 1 L.Ed. 113 (Pa.Sup.Ct.1788); James v. Allen, 1 Dall. 188, 1 L.Ed. 93 (Pa.Ct. Common Pleas 1786). Uniformity among state debtor insolvency laws was an impossibility and the practice of passing private bankruptcy laws was subject to abuse if the legislators were less than honest. Thus, it is not surprising that the Bankruptcy Clause was introduced during discussion of the Full Faith and Credit Clause. The Framers sought to provide Congress with the power to enact uniform laws on the subject enforceable among the States. See Nadelmann, supra, at 224-227. Similarly, the Bankruptcy Clause's uniformity requirement was drafted in order to prohibit Congress from enacting private bankruptcy laws. See H. Black, Constitutional Prohibitions 6 (1887) (States had discriminated against British creditors). The States' practice of enacting private bills had rendered uniformity impossible.14 22 Our holding today does not impair Congress' ability under the Bankruptcy Clause to define classes of debtors and to structure relief accordingly. We have upheld bankruptcy laws that apply to a particular industry in a particular region. See 3R Act Cases, 419 U.S. 102, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974). The uniformity requirement, however, prohibits Congress from enacting a bankruptcy law that, by definition, applies only to one regional debtor. To survive scrutiny under the Bankruptcy Clause, a law must at least apply uniformly to a defined class of debtors. A bankruptcy law, such as RITA, confined as it is to the affairs of one named debtor can hardly be considered uniform. To hold otherwise would allow Congress to repeal the uniformity requirement from Art. I, § 8, cl. 4, of the Constitution. 23 Since that result may be accomplished only by the process prescribed in that document for its amendment, the judgment of the Court of Appeals in No. 80-1239 is affirmed, and the judgment of the District Court in No. 80-415 is vacated with instructions to dismiss the complaint as moot. See United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed. 36 (1950). 24 It is so ordered. 25 Justice MARSHALL, with whom Justice BRENNAN joins, concurring in the judgment. 26 I agree with the Court that the Rock Island Railroad Transition and Employee Assistance Act (RITA) violates the uniformity requirement of the Bankruptcy Clause. I write separately, however, because the Court accords a broader scope to that requirement than the Clause's language, its history, and the Court's cases justify. In particular, I am concerned that the Court's rationale may unduly restrict Congress' power to legislate with respect to the distinctive needs of a particular railroad or its employees. I conclude that the Clause permits such legislation if Congress finds that the application of the law to a single debtor (or limited class of debtors) serves a national interest apart from the economic interests of that debtor or class, and if the identified national interest justifies Congress' failure to apply the law to other debtors. However, because RITA does not satisfy this more stringent test, I agree that RITA is unconstitutional. 27 The Court argues that the uniformity requirement forbids Congress to enact any bankruptcy law affecting a single debtor. But I do not believe that uniformity invariably requires that a bankruptcy law apply to a multiplicity of debtors. The term "uniform" does not necessarily imply either that the law must avoid specifying the debtors to which it applies or that the law must affect more than a single debtor. As we have noted in different contexts, a named individual may constitute a "legitimate class of one." Nixon v. Administrator of General Services, 433 U.S. 425, 472, 97 S.Ct. 2777, 2805, 53 L.Ed.2d 867 (1977) (rejecting claim that statute applying, and referring by name, only to a single former President is a bill of attainder). Cf. Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957) (invalidating a statute expressly exempting the American Express Co. by name), overruled in New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976) (per curiam ). 28 In reviewing the scanty history of the Clause, the Court notes that one principal purpose was to avoid conflict between state laws concerning debtor insolvency. That concern, of course, is satisfied simply by uniform interstate application of federal bankruptcy laws under the Supremacy Clause. Another purpose, according to the Court, may have been to prevent the passage of private Acts to relieve individual debtors. However, the references to private Acts contained in the debates may have been intended only as examples of the first problem, in that other States failed to give credit to such Acts. To the extent that the Framers were concerned about the passage of private Acts, the question remains whether they intended to prohibit all such Acts, and thus to disable Congress from enacting legislation applying to a specified debtor but promoting more general national policies than the simple economic interests of the debtor. 29 Our cases do not support the Court's view that any bankruptcy law applying to a single named debtor is unconstitutional. In the most relevant case, Regional Rail Reorganization Act Cases, 419 U.S. 102, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974) (3R Act Cases ), this Court held that the Regional Rail Reorganization Act did not violate the Uniformity Clause even though it applied only to eight railroads in a specified geographic region. The Court squarely rejected the argument that the geographic nonuniformity of the Rail Act violated the Bankruptcy Clause. "The argument has a certain surface appeal but is without merit because it overlooks the flexibility inherent in the constitutional provision." Id., at 158, 95 S.Ct., at 366. Reviewing earlier cases, the Court emphasized Congress' power to recognize geographic differences and "to fashion legislation to resolve geographically isolated problems." Id., at 159, 95 S.Ct. at 366. The Court also noted that no other railroad was in reorganization during the time that the Act applied. The Court concluded that the Act satisfies the uniformity requirement because it is "designed to solve 'the evil to be remedied.' " Id., at 161, 95 S.Ct., at 367, quoting Head Money Cases, [Edye v. Robertson ] 112 U.S. 580, 595, 5 S.Ct. 247, 252, 28 L.Ed. 798 (1884). 30 The Court's analysis in this case, too, "has a certain surface appeal." If a law applies to one debtor, it is invalid; if it applies to more than one debtor, it is valid if it satisfies the 3R Act Cases test, i.e., if it was designed to solve an identified evil. But there is nothing magical about a law that specifies only one object. I discern no principled ground for refusing to apply the same test without regard to the number of businesses regulated by the law.1 31 I would apply the 3R Act Cases test in every instance. Congress may specify what debtors, or (which is often the same thing) what portion of the country, will be subject to bankruptcy legislation. The constraint of uniformity, however, requires Congress to legislate uniformly with respect to an identified "evil." In the Regional Rail Reorganization Act, Congress imposed certain requirements on all railroads in reorganization; all were deemed to present the same "evil." If Congress has legislated pursuant to its bankruptcy power, furthering federal bankruptcy policies, and if the specificity of the legislation is defensible in terms of those policies, then, but only then, has Congress satisfied the uniformity requirement. Where, as here, the law subjects one named debtor to special treatment, I would require especially clear findings to justify the narrowness of the law. 32 Although the question is close, I conclude that Congress did not justify the specificity of RITA in terms of national policy. Rather, the legislative history indicates an attempt simply to protect employees of a single railroad from the consequences of bankruptcy. No explanation for the specificity of the law is given that would justify such narrow application. In its statutory findings, Congress stated that "uninterrupted continuation of services over Rock Island lines is dependent on adequate employee protection provisions," and that a cessation of services would seriously affect certain state economies and the shipping public. 45 U.S.C. § 1001 (1976 ed., Supp.IV). The findings explicitly refer, however, only to the Rock Island Railroad. To be sure, in the legislative history Congress did recite more general purposes. Congressional Reports advert to the need for labor protection in "bankruptcy proceedings involving major rail carriers," H.R.Conf.Rep.No. 96-1430, p. 139 (1980), U.S.Code Cong. & Admin.News 1980, p. 4171, and the need "to avoid disruption of rail service and undue displacement of employees." H.R.Conf.Rep.No. 96-1041, p. 26 (1980), U.S.Code Cong. & Admin.News 1980, pp. 1156, 1187. See S.Rep.No. 96-614, p. 5 (1980). But recitation of a general purpose does not justify narrow application to a single debtor where, as here, that purpose does not explain the nonuniform treatment of other comparable railroads that are now, or may be, in reorganization. See ante, at 470, n. 11. With respect to such railroads, reorganization will result in the same displacement of employees and disruption of service—the same "evil"—that Congress purported to address in RITA. Because Congress' findings fail to demonstrate that the narrowness of RITA is addressed to a particular kind of problem, the law does not satisfy the uniformity requirement. 33 I agree with the Court that "[t]he employee protection provisions of RITA cover neither a defined class of debtors nor a particular type of problem, but a particular problem of one bankrupt railroad." Ante, at 470-471. I do not agree that Congress may not legislate with respect to a single debtor, even if only that debtor presents "a particular type of problem." If, for example, Consolidated Rail Corp. were to fail, I cannot believe that Congress would be prohibited from enacting legislation addressed to the peculiar problems created by the bankruptcy of one of the Nation's principal freight carriers.2 34 For the foregoing reasons, I concur in the result reached by the Court. 1 Section 17(a) of MRRA provides in relevant part: "In authorizing any abandonment pursuant to this section, the court shall require the carrier to provide a fair arrangement at least as protective of the interests of employees as that required under section 11347 of title 49." 45 U.S.C. § 915(a) (1976 ed., Supp.IV). Title 49 U.S.C. § 11347 (1976 ed., Supp.III) provides in relevant part: "[T]he Interstate Commerce Commission shall require the carrier to provide a fair arrangement at least as protective of the interests of employees who are affected . . . as the terms imposed under this section before February 5, 1976, and the terms established under section 565 of title 45. . . . The arrangement and the order approving the transaction must require that the employees of the affected rail carrier will not be in a worse position related to their employment as a result of the transaction during the 4 years following the effective date of the final action of the Commission." 2 Section 106, as originally enacted, provided in relevant part: "(a) No later than 10 days after the date of enactment of this Act, in order to avoid disruption of rail service and undue displacement of employees, the Rock Island Railroad and labor organizations representing the employees of such railroad, with the assistance of the National Mediation Board, may enter into an agreement providing protection for employees of such railroad who are adversely affected as a result of a reduction in service by such railroad. Such employee protection may include, but need not be limited to, employee relocation incentive compensation, moving expenses, and separation allowances. "(b) If the Rock Island Railroad and the labor organizations representing the employees of such railroad are unable to enter into an employee protection agreement under subsection (a) of this section within 10 days after the date of enactment of this Act, the parties shall immediately submit the matter to the Commission. The Commission shall impose upon the parties by appropriate order a fair and equitable arrangement with respect to employee protection no later than 30 days after the date of enactment of this Act, unless the Rock Island Railroad and the authorized representatives of its employees have by then entered into a labor protection agreement. For purposes of this subsection, the term 'fair and equitable' means no less protective of the interests of employees than protection afforded under section 9 of the Milwaukee Railroad Restructuring Act (45 U.S.C. 908), subject to the limitations set forth in section 110 of this title. "(c) If an employee protection arrangement is imposed by the Commission under (b) of this section, the bankruptcy court shall immediately authorize and direct the Rock Island Railroad trustee to, and the Rock Island Railroad trustee and the labor organizations representing the employees of the railroad shall, immediately implement such arrangement. * * * * * "(e)(1) Any claim of an employee for benefits and allowances under an employee protection agreement or arrangement entered into under this section shall be filed with the [Railroad Retirement] Board . . . . "(2) Benefits and allowances under such agreement or arrangement entered into under this section shall be paid by the Rock Island Railroad from its own assets or in accordance with section 110 of this title, and claims of employees for such benefits and allowances shall be treated as administrative expenses of the estate of the Rock Island Railroad." 94 Stat. 401-402 (emphasis added). 3 Section 110, as originally enacted, provided in relevant part: "(a) The Secretary . . . shall guarantee obligations of the Rock Island Railroad for purposes of providing employee protection in accordance with the terms of any employee protection agreement or arrangement entered into under section 106 of this title. "(b) Any obligation guaranteed pursuant to this section shall be treated as an administrative expense of the estate of the Rock Island Railroad. "(c) The aggregate unpaid principal amount of obligations which may be guaranteed by the Secretary pursuant to this section shall not exceed $75,000,000. "(d) The total liability of the Rock Island Railroad in connection with benefits and allowances provided under any employee protection agreement or arrangement entered into under section 106 of this title shall not exceed $75,000,000. "(e) Except in connection with obligations guaranteed under this section, the United States shall incur no liability in connection with any employee protection agreement or arrangement entered into under section 106 of this title." 94 Stat. 403. 4 Those employees hired by other carriers are covered by the March 4, 1980, agreement. Supra, at 460. 5 In §§ 106(a) and (b), the respective time limits were shortened to five days after the enactment of the Staggers Act. The judicial review provisions of § 106(d) were modified substantially. In § 110(e), Congress added the words "to employees" after "liability," apparently in reference to the Tucker Act remedy alluded to in new § 124(c). 6 Section 124(c) provides that "[n]othing in this chapter or in the Milwaukee Railroad Restructuring Act . . . shall limit the right of any person to commence an action in the United States Court of Claims under . . . the Tucker Act. . . ." 45 U.S.C. § 1018(c) (1976 ed., Supp.IV). 7 Section 124(a)(1), 45 U.S.C. § 1018(a)(1), (1976 ed., Supp.IV), provides that "any decision of the bankruptcy court with respect to the constitutionality of any provision of this chapter . . . shall be taken to the United States Court of Appeals for the Seventh Circuit." 8 The injunction of June 9, 1980, was rendered moot by the enactment of the Staggers Act which re-enacted and amended the sections of RITA declared unconstitutional by the reorganization court. 9 In addition to the Bankruptcy Clause and the Just Compensation Clause of the Fifth Amendment, appellees have challenged RITA pursuant to principles of separation of powers, the equal protection component of the Fifth Amendment, and the Due Process Clause of the Fifth Amendment. We find it unnecessary to reach any of these additional contentions. 10 By contrast, the 3R Act applied to the reorganization proceedings of 8 major railroads and 15 lessors of leased lines of the Penn Central. 3R Act Cases, 419 U.S., at 108-109, n.3, 95 S.Ct., at 341-342, n.3. 11 At the time RITA was enacted, the New York, Susquehanna and Western Railroad was in the process of liquidation under § 77 of the Bankruptcy Act of 1898. In re New York, S. & W. R. Co., 504 F.Supp. 851 (NJ 1980), aff'd, 673 F.2d 1301 (CA3 1981). Another bankrupt railroad is undergoing liquidation proceedings under the Bankruptcy Act of 1978, 11 U.S.C. §§ 1161-1174 (1976 ed., Supp.IV). In re Auto-Train Corp., 11 B.R. 418 (Bkrtcy.DC 1981). The Milwaukee Road is in an income-based reorganization. That railroad is subject to its own employee protection requirements under §§ 5 and 9 of the MRRA, 45 U.S.C. §§ 904, 908 (1976 ed., Supp.IV). As with the case of §§ 106 and 108 of RITA, these sections of the MRRA apply only to one railroad. We have no occasion in these cases to consider the constitutionality of these provisions of the MRRA. Nevertheless, it is no argument that RITA is uniform because another statute imposes similar obligations upon another railroad, as the United States appears to contend. The issue is not whether Congress has discriminated against the Rock Island estate, but whether RITA's employee protection provisions are uniform bankruptcy laws. The uniformity requirement of the Bankruptcy Clause is not an Equal Protection Clause for bankrupts. 12 By its very terms, RITA applies only to the Rock Island. 45 U.S.C. §§ 1001, 1005, 1007-1008 (1976 ed., Supp.IV). Thus, we have no occasion to review a bankruptcy law which defines by identifying characteristics a particular class of debtors. Cf. 3R Act Cases, supra, at 156-160, 95 S.Ct., at 365-367. 13 "Mr. Sherman observed that Bankruptcies were in some cases punishable with death by the laws of England—& He did not chuse to grant a power by which that might be done here." 2 M. Farrand, Records of the Federal Convention of 1787, p. 489 (1911). 14 The Framers' intent to achieve uniformity among the Nation's bankruptcy laws is also reflected in the Contract Clause. Apart from and independently of the Supremacy Clause, the Contract Clause prohibits the States from enacting debtor relief laws which discharge the debtor from his obligations, Sturges v. Crowninshield, 4 Wheat. 122, 197-199, 4 L.Ed. 529 (1819), unless the law operates prospectively. Ogden v. Saunders, 12 Wheat. 213, 6 L.Ed. 606 (1827). 1 The Court implies that a law which is general in its terms but in operation applies only to a single debtor might satisfy the uniformity requirement. Again, such a formalistic requirement is not a principled reason for striking down congressional legislation. 2 It is indeed ironic that under the Court's approach, bankruptcy legislation respecting Conrail might be invalid. Conrail was created by the 3R Act, which reorganized eight bankrupt railroads into a single viable system operated by a private, for profit corporation. It is difficult to understand why legislation affecting the eight railroads passed constitutional muster in the 3R Act Cases, 419 U.S., at 156-161, 95 S.Ct., at 365-367, yet legislation affecting their successor might not.

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455 U.S. 478 102 S.Ct. 1181 71 L.Ed.2d 353 James M. MURPHY, District Judge, Fourth Judicial District of the State of Nebraska, Douglas County, Appellant,v.Eugene L. HUNT. No. 80-2165. March 2, 1982. PER CURIAM. 1 Appellee Hunt was charged with first-degree sexual assault on a child and three counts of first-degree forcible sexual assault. He appeared on these charges in Omaha Municipal Court where his request for bail was denied.1 On May 23, 1980, a bail review hearing was held in Douglas County District Court. Relying on Art. I, § 9, of the Nebraska Constitution, Judge Murphy, appellant here, denied Hunt's second application for bail.2 That section of the Nebraska Constitution provides in relevant part: "All persons shall be bailable . . . except for treason, sexual offenses involving penetration by force or against the will of the victim, and murder, where the proof is evident or the presumption great." For purposes of his application for bail, Hunt's counsel stipulated that, in this case, "the proof [was] evident and the presumption [was] great." 2 On June 9, 1980, pending trial on the charges against him, Hunt filed a complaint under 42 U.S.C. § 1983 (1976 ed., Supp.V) in the United States District Court for the District of Nebraska. He claimed that Art. I, § 9, of the State Constitution, limiting bail in cases of first-degree sexual offenses, violated his federal constitutional rights to be free from excessive bail and cruel and unusual punishment, to due process and equal protection of the laws, and to the effective assistance of counsel under the Sixth, Eighth, and Fourteenth Amendments. He sought declaratory and injunctive relief only. On October 17, 1980, the District Court dismissed Hunt's civil rights complaint. Hunt appealed to the Court of Appeals for the Eighth Circuit. 3 Meanwhile, the prosecutions against Hunt had proceeded. On September 10, 1980—even prior to the District Court decision—and November 5, 1980, he was found guilty of two of the three first-degree forcible sexual assault charges against him. On November 13, 1980, he was sentenced to consecutive terms of 8-15 years in prison for these offenses.3 On October 8, 1980, again prior to the decision of the District Court, Hunt was convicted of first-degree sexual assault on a child. On December 11, 1980, he was sentenced to 12-15 years in prison on this charge. Hunt appealed each of these convictions to the Nebraska Supreme Court and each of these appeals remains pending before that court. 4 On May 13, 1981, the Court of Appeals for the Eighth Circuit decided Hunt's appeal from the dismissal of his § 1983 claim. Hunt v. Roth, 648 F.2d 1148 (1981). The court reversed the District Court and held that the exclusion of violent sexual offenses from bail before trial violates the Excessive Bail Clause of the Eighth Amendment of the United States Constitution.4 Because we find that Hunt's constitutional claim to pretrial bail became moot following his convictions in state court, we now vacate the judgment of the Court of Appeals. 5 In general a case becomes moot " 'when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.' " United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980), quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1950, 23 L.Ed.2d 491 (1969). It would seem clear that under this general rule Hunt's claim to pretrial bail was moot once he was convicted.5 The question was no longer live because even a favorable decision on it would not have entitled Hunt to bail. For the same reason, Hunt no longer had a legally cognizable interest in the result in this case. He had not prayed for damages nor had he sought to represent a class of pretrial detainees. 6 We have recognized an exception to the general rule in cases that are "capable of repetition, yet evading review." In Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (per curiam ), we said that "in the absence of a class action, the 'capable of repetition, yet evading review' doctrine was limited to the situation where two elements combined: (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." See Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 187, 99 S.Ct. 983, 991, 59 L.Ed.2d 230 (1979); Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). Because the Nebraska Supreme Court might overturn each of Hunt's three convictions, and because Hunt might then once again demand bail before trial, the Court of Appeals held that the matter fell within this class of cases "capable of repetition, yet evading review."6 We reach a different conclusion. 7 The Court has never held that a mere physical or theoretical possibility was sufficient to satisfy the test stated in Weinstein. If this were true, virtually any matter of short duration would be reviewable. Rather, we have said that there must be a "reasonable expectation" or a "demonstrated probability" that the same controversy will recur involving the same complaining party. Weinstein v. Bradford, supra, at 149, 96 S.Ct., at 348. We detect no such level of probability in this case. All we know from the record is that Hunt has been convicted on three separate offenses and that his counsel was willing to stipulate that, for the purposes of Hunt's eligibility for bail, the proof of guilt was evident and the presumption great. Based on these two facts, we cannot say that there exists a "reasonable expectation" or "demonstrated probability" that Hunt will ever again be in this position. There is no reason to expect that all three of Hunt's convictions will be overturned on appeal.7 Hunt's willingness to stipulate that the proof against him was "evident" does not encourage us to believe otherwise. 8 Nor is Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), relied upon by the Court of Appeals, to the contrary. In that case we held that the constitutionality of a pretrial restrictive order, entered prior to a criminal trial and that expired once the jury was impaneled, was not moot even though the order had long since expired. The Court found that the controversy between the parties was "capable of repetition" because the defendant's conviction might be overturned on appeal, requiring a new trial and possibly a new restrictive order, and because the dispute between the Nebraska Press Association and the State of Nebraska as to the use of restrictive orders was likely to recur in future criminal trials. It was the combination of these elements, both of which were capable of repetition, that permitted the Court to conclude that the matter was not moot under the standard stated in Weinstein.8 9 There is no comparable set of expectations in this case. We have no reason to believe that Hunt will once again be in a position to demand bail before trial. 10 Accordingly, we find that the case presented is now moot. Indeed, it was moot at the time of the decisions of both the District Court and the Court of Appeals. The judgment of the Court of Appeals is vacated, and the case is remanded to the Court of Appeals with instructions that the complaint be dismissed. 11 So ordered. 12 Justice WHITE dissenting. 13 Art. I, § 9, of the Nebraska Constitution states that aside from individuals charged with treason, murder, or forcible rape where the proof is evident or the presumption great, "[a]ll persons shall be bailable." The section is not limited to persons awaiting trial. Moreover, the Nebraska statute concerning appeals to the State Supreme Court provides that "[n]othing herein shall prevent any person from giving supersedeas bond in the district court . . . nor affect the right of a defendant in a criminal case to be admitted to bail pending the review of such case in the Supreme Court." Neb.Rev.Stat. § 25-1912 (1979).1 Thus, the provision in the Nebraska Constitution which allowed Judge Murphy to deny appellee Hunt bail pending trial also serves to deny Hunt bail pending appeal of his conviction. Both parties agree that this is so.2 14 The Court does not dispute that Art. I, § 9, of the Nebraska Constitution applies to applications for bail pending appeal. Instead the Court considers this factor irrelevant because Hunt has not requested bail pending appeal and because the Court of Appeals held the Nebraska constitutional provision unconstitutional only as applied to pretrial detainees. Ante, at 481-482, n. 5. 15 I am not persuaded that the issue can be so lightly dismissed. The claim is plainly presented in this Court that the challenged provision effectively bars bail during Hunt's appeal to the Nebraska Supreme Court. If § 9 were declared unconstitutional here, Hunt could seek bail pending review of his convictions by that court. The fact that he has not yet filed such a request in the state courts cannot be taken as a waiver of the right to request release. Because Hunt was denied bail before trial under § 9, a request for bail after conviction would have been a useless formality. The provision forbids releasing on bail an individual charged with forcible rape where the proof of guilt is evident or the presumption great. Since Judge Murphy found that standard satisfied before Hunt's conviction, appellant could reasonably conclude that further application under current Nebraska law would be futile. 16 Because § 9 is an independent barrier denying Hunt the ability to obtain bail pending appeal, the question is not whether his pretrial detention is "capable of repetition, yet evading review." We therefore need not ask whether there is a reasonable expectation that Hunt would again be denied bail prior to trial.3 The unavailability of an opportunity for bail pending appeal may constitute a sufficiently live issue to maintain Hunt's interest in the outcome of this litigation. 17 The Court's analysis must therefore rest on the limitation of the Court of Appeals' decision to pretrial detainees. Even accepting this reading of the Court of Appeals' opinion, the Court's point appears to be no more than a restatement of the related observation that Hunt did not, in fact could not at the time this suit was filed, assert a claim to bail pending appeal. The Court of Appeals reasonably ruled no more broadly than required. Nevertheless, the consequences of the court's decision ruling the Nebraska provision unconstitutional extend to Hunt's rights to seek bail pending appeal. If the Eighth Amendment is applied to the States and does create an implied right to bail, then the State may not be able to categorically deny bail pending appeal in the manner Nebraska has chosen. If conversely, there is no right to pretrial bail, a fortiori, Hunt would not be able to obtain release under present circumstances.4 18 Because the Court of Appeals found Hunt's denial of pretrial bail not moot under Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), it had no cause to consider other reasons why the case remained alive. When this Court has entertained doubt about the continuing nature of a case or controversy, it has remanded the case to the lower court for consideration of the possibility of mootness. Vitek v. Jones, 436 U.S. 407, 98 S.Ct. 2276, 56 L.Ed.2d 381 (1978); Scott v. Kentucky Parole Board, 429 U.S. 60, 97 S.Ct. 342, 50 L.Ed.2d 303 (1976); Indiana Employment Security Div. v. Burney, 409 U.S. 540, 93 S.Ct. 883, 35 L.Ed.2d 62 (1973). A remand is particularly in order where, as here, the mootness issue has not been briefed and both parties agree that the case is not moot. 19 While couched in terms of justiciability, the effect of the Court's decision is to vacate the judgment of the Court of Appeals. The restrictions on bail struck down as unconstitutional by the Eighth Circuit are given new life; consequently, any attempt by Hunt to obtain release pending appeal of his convictions will be denied pursuant to the Nebraska Constitution. Because of Hunt's undeniable interest in securing his liberty, his interests remain adverse with those of the appellant, and an Art. III case or controversy may well exist. I would prefer that the Court of Appeals be allowed to explore the mootness issue further. I therefore dissent. 1 Appellee was also charged with several counts of nonsexual felonies and one count of nonforcible sexual assault. Bail was set as to each of these charges. 2 The court relied as well upon a decision of the Supreme Court of Nebraska holding that Art. I, § 9, of the Nebraska Constitution violates neither the Sixth, Eighth, nor Fourteenth Amendment to the United States Constitution. See Parker v. Roth, 202 Neb. 850, 278 N.W.2d 106 (1979). 3 The remaining first-degree sexual assault charge against him was dismissed on December 11, 1980. 4 "The constitutional protections involved in the grant of pretrial release by bail are too fundamental to foreclose by arbitrary state decree. . . . "We hold, therefore, that the portion of Article I, section 9 of the Nebraska Constitution denying bail to persons charged with certain sexual offenses violates the eighth amendment of the United States Constitution, as incorporated in the fourteenth amendment." 648 F.2d, at 1164-1165. 5 Hunt made no claim of a constitutional right to bail pending appeal. Indeed, at the time he initiated this action he had not yet been convicted. The decision of the Court of Appeals held the Nebraska constitutional provision unconstitutional only as applied to "persons charged with certain . . . offenses." See n. 4, supra (emphasis added). Hunt's arguments before this Court are similarly limited to the constitutional rights of a person accused, but not convicted, of a noncapital offense. The constitutionality of Art. I, § 9, as applied to a person awaiting trial is a question distinct from the constitutionality of that section as applied to a person who has been tried and convicted. The Excessive Bail Clause of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment may well apply differently in the two situations. As the Court has often noted: "Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court." Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2914, 37 L.Ed.2d 830 (1973). Therefore, even assuming that Hunt had raised a claim for bail pending appeal, it would be that claim that the Court should decide—not the related but quite distinct claim for bail by a presumptively innocent person awaiting trial. For the same reasons it cannot be said as a matter of federal law that a decision holding that Hunt was unconstitutionally denied bail prior to trial will have any consequences with respect to his right to bail pending appeal and after conviction. In short, the fact that Hunt may have a live claim for bail pending appeal, does not save from dismissal his now moot claim to pretrial bail. 6 Judge Arnold dissented from this conclusion for the same reasons advanced in this opinion. 7 "What the likelihood of such a triple reversal might be, we have no way of knowing, since this record contains no hint of the facts relevant to Hunt's guilt or innocence. The possibility of three reversals is wholly speculative. They could come about, but one may be pardoned, I hope, for doubting it." 648 F.2d, at 1166 (Arnold, J., dissenting). 8 The Court in Nebraska Press Assn. cited our decision in Weinstein for support of its conclusion that the matter was not moot. The Court in no way purported to weaken the standard of a "reasonable expectation" or "demonstrated probability" stated in Weinstein. See also Nebraska Press Assn. v. Stuart, 427 U.S., at 585, n. 13, 96 S.Ct., at 2815, n. 13 (BRENNAN, J., concurring in judgment) ("It is evident that the decision of the Nebraska Supreme Court will subject petitioners to future restrictive orders with respect to pretrial publicity . . ."). 1 The "same criteria would remain applicable" to bail pending appeal as bail pending trial; there is no "separate section of our law" for the former. Tr. of Oral Arg. 21. See Neb.Rev.Stat. § 29-901 (1979). Thus, "if bail is to be denied Mr. Hunt . . . it must be done pursuant to this constitutional provision." Tr. of Oral Arg. 22. In addition, the Nebraska Supreme Court has held that Nebraska courts have the inherent power to consider the propriety of bail even without a specific authorizing statute. State v. Jensen, 203 Neb. 441, 279 N.W.2d 120 (1979). 2 Probable jurisdiction having been noted, and the parties being in agreement that the case was not moot, the issue was not briefed. At oral argument, however, both Mr. Schaaf, the Assistant State Attorney General and Mr. Hornstein, representing Hunt, directly stated that Art. I, § 9, applied to applications for bail pending appeal. "Question: [A]fter conviction in a criminal case, is anyone entitled to bail while his case is on appeal? "Mr. Schaaf: Yes. . . . "Question: . . . I suppose that this statute would prevent bail while the case is pending on appeal. "Mr. Schaaf: Yes . . . "Question: So why is it moot until it is decided? "Mr. Schaaf: We suggest that it is not [moot]." Tr. of Oral Arg. 19. "Question: Wouldn't this constitutional amendment be a basis for denying bail pending appeal? "Mr. Hornstein: I agree with that. Certainly. "Question: However the factors might sort out under the other statute, this would be independently a reason for denying bail? "Mr. Hornstein: I think it mandates a denial of bail. "Question: [A]nd as long as the case is pending, this case isn't moot, is it? "Mr. Hornstein: No, our position is that it is not moot. I mean, I think both sides agree that it is not moot." Id., at 40. 3 I am not convinced, however, that the Court is correct in finding that this case does not satisfy the conditions for the "capable of repetition, yet evading review" exception. Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), suggests that the two bases for finding the events capable of repetition were independent. ("The controversy between the parties to this case is 'capable of repetition' in two senses." Id., at 546, 96 S.Ct. at 2796.) Moreover, there is language in Gerstein v. Pugh, 420 U.S. 103, 110-111, n. 11, 95 S.Ct. 854, 861-862, n. 11, 43 L.Ed.2d 54 (1975), which suggests that pretrial claims of this type are inherently within the exception when represented by a public defender: "Moreover, in this case the constant existence of a class of persons suffering the deprivation is certain. The attorney representing the named respondents is a public defender, and we can safely assume that he has other clients with a continuing live interest in the case." This language, which the Court silently disavows by the result it has reached, may be read to suggest that the formalities of class certification are unnecessary because of the presence of the public defender, who, in effect, represents a continuing class of individuals subject to pretrial detention. 4 The Court misinterprets the significance of this point. Contrary to the Court's account, ante, at 481-482, n. 5, it is not that the Court should now decide whether the provision is unconstitutional with respect to persons requesting bail after conviction. Rather, the point is that deciding whether Hunt was unconstitutionally denied bail prior to trial will have important consequences with respect to Hunt's right to bail pending appeal—a collateral consequence giving Hunt a continuing stake in the resolution of this case. There is nothing novel in this approach. See, e.g., Sibron v. New York, 392 U.S. 40, 51, 88 S.Ct. 1889, 1896, 20 L.Ed.2d 917 (1968) ("mere release of a prisoner does not mechanically foreclose consideration of the merits [of his conviction] by this Court"); Pennsylvania v. Mimms, 434 U.S. 106, 108-109, n. 3, 98 S.Ct. 330, 332-333, n. 3, 54 L.Ed.2d 331 (1977) ("possibility of a criminal defendant's suffering 'collateral legal consequences' from a sentence already served permits him to have his claims reviewed here on the merits"); Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) (remaining claim for back salary justified determining whether Powell was properly excluded from membership in the House of Representatives despite the fact that he had already been seated).

89

455 U.S. 445 102 S.Ct. 1162 71 L.Ed.2d 325 Richard H. WHITE, Petitionerv.NEW HAMPSHIRE DEPARTMENT OF EMPLOYMENT SECURITY et al. No. 80-5887. Argued Nov. 30, 1981. Decided March 2, 1982. Syllabus Petitioner filed an action in Federal District Court alleging that respondent New Hampshire Department of Employment Security failed to make timely determinations of certain entitlements to unemployment compensation, thereby violating a provision of the Social Security Act, the Due Process Clause, and 42 U.S.C. § 1983. Ultimately, the District Court approved the parties' consent decree and entered judgment accordingly. Approximately four and one-half months after the entry of the judgment, petitioner filed a motion requesting an award of attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, which authorizes the award, in the court's discretion, of attorney's fees to the prevailing party "as part of the costs" in constitutional and civil rights litigation of various kinds. The District Court granted attorney's fees and denied respondents' subsequent motion to vacate the consent decree. The Court of Appeals reversed the District Court's decision to award attorney's fees under § 1988. It held that petitioner's motion for attorney's fees constituted a "motion to alter or amend the judgment" under Federal Rule of Civil Procedure 59(e) and was governed by the Rule's requirement that such a motion be served not later than 10 days after entry of the judgment. Held: Rule 59(e) is not applicable to postjudgment requests for attorney's fees under § 1988. Pp. 450-454. (a) The Rule has generally been invoked only to support reconsideration of matters properly encompassed in a decision on the merits. Since § 1988 provides for awards of attorney's fees only to a "prevailing party," the decision of entitlement to fees requires an inquiry separate from the decision on the merits—an inquiry that cannot even commence until one party has "prevailed." Nor can attorney's fees fairly be characterized as an element of "relief" indistinguishable from other elements. Pp. 451-452. (b) Application of Rule 59(e) to § 1988 fee requests is neither necessary nor desirable to promote finality, judicial economy, or fairness. Many orders may issue in the course of a civil rights action, but it may be unclear which orders are and which are not "final judgments." If Rule 59(e) were applicable, lawyers predictably would respond by entering fee motions in conjunction with nearly every interim ruling. No useful purpose would be served by encouragement of this practice, or by litigation over the "finality" of interim orders in connection with which fee requests were not filed within the 10-day period. The Rule's 10-day limit could also deprive counsel of the time necessary to negotiate private settlements of fee questions, thus generating increased litigation of fee questions. The discretion conferred on the court by § 1988 with regard to the award of attorney's fees will support a denial of fees in cases in which a postjudgment motion unfairly surprises or prejudices the affected party. Pp. 452-454. 629 F.2d 697, reversed and remanded. E. Richard Larson, New York City, for petitioner. Marc R. Scheer, Asst. Atty. Gen., Concord, N. H., for respondents. Justice POWELL delivered the opinion of the Court. 1 The issue in this case arises from a postjudgment request for an award of attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988. The question is whether such a request is a "motion to alter oramend the judgment," subject to the 10-day timeliness standard of Rule 59(e) of the Federal Rules of Civil Procedure.1 2 * This litigation began in March 1976, when the petitioner Richard White filed suit against respondent New Hampshire Department of Employment Security (NHDES) and its Commissioner. White claimed that the respondent failed to make timely determinations of certain entitlements to unemployment compensation, thereby violating an applicable provision of the Social Security Act, 42 U.S.C. § 503(a)(1), the Due Process Clause of the Constitution of the United States, and 42 U.S.C. § 1983. Alleging federal jurisdiction under 28 U.S.C. § 1343, he sought declaratory and injunctive relief and "such other and further relief as may be equitable and just." App. 15. His complaint did not specifically request attorney's fees. 3 Following certification of the case as a class action, the District Court granted relief on petitioner's claim under the Social Security Act.2 Pending an appeal by NHDES to the Court of Appeals, however, the parties signed a settlement agreement. The case was then remanded to the District Court, which approved the consent decree and gave judgment accordingly on January 26, 1979. 4 Five days after the entry of judgment, counsel to White wrote to respondent's counsel, suggesting that they meet to discuss the petitioner's entitlement to attorney's fees as a prevailing party under 42 U.S.C. § 1988. No meeting appears to have been held. On June 7, 1979, approximately four and one-half months after the entry of a final judgment, the petitioner White filed a motion in which an award of fees formally was requested. 5 In a hearing in the District Court, respondent's counsel claimed he had been surprised by petitioner's postjudgment requests for attorney's fees.3 He averred he understood that the consent decree, by its silence on the matter, implicitly had waived any claim to a fee award. White's counsel asserted a different understanding. Apparently determining that the settlement agreement had effected no waiver,4 the District Court granted attorney's fees in the sum of $16,644.40. 6 Shortly thereafter, respondent moved to vacate the consent decree. It argued, in effect, that it had thought its total liability fixed by the consent decree and that it would not have entered a settlement knowing that further liability might still be established. The District Court denied the motion to vacate. 7 On appeal, the Court of Appeals for the First Circuit reversed the District Court's decision to award attorney's fees under § 1988. 629 F.2d 697 (1980). The court held that petitioner's postjudgment motion for attorney's fees constituted a motion to alter or amend the judgment, governed by Rule 59(e) of the Federal Rules of Civil Procedure and its 10-day time limit. 629 F.2d, at 699. 8 In holding as it did, the Court of Appeals recognized that § 1988 provided for the award of attorney's fees "as part of the costs."5 But it declined to follow a recent decision of the Court of Appeals for the Fifth Circuit6 that treated a § 1988 fee request as a motion for "costs" under Federal Rules of Civil Procedure 54(d)7 and 588—Rules that contain no explicit time bars. Despite the language of § 1988, the Court of Appeals reasoned that attorney's fees could not be the kind of "costs" contemplated by Rules 54(d) and 58. It reached this conclusion by looking to 28 U.S.C. § 1920, which specifies various "costs" that can be assessed by a clerk of court under Rule 54. The court found all to be "capable of routine computation" on a day's notice. 629 F.2d, at 702. By contrast, an award of attorney's fees must be made by a judge. Further, as in this case, a fee award could affect substantially the total liability of the parties. 9 The Court of Appeals found this case distinguishable from Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), in which this Court characterized attorney's fees, under the Fees Act, as "costs" taxable against a State. In Hutto, the Court of Appeals reasoned, the narrow question was whether the States have Eleventh Amendment immunity against liability for attorney's fees. The question was not whether attorney's fees are costs under Rule 54. The court also dismissed the argument that a request for attorney's fees is "a collateral and independent claim" properly adjudicated separately from a claim on the merits. 10 Because other Courts of Appeals have reached different conclusions about the applicability of Rule 59(e) to postjudgment motions for the award of attorney's fees,9 we granted certiorari in this case to resolve the conflict.10 We now reverse. II A. 11 Rule 59(e) was added to the Federal Rules of Civil Procedure in 1946. Its draftsmen had a clear and narrow aim. According to the accompanying Advisory Committee Report, the Rule was adopted to "mak[e] clear that the district court possesses the power" to rectify its own mistakes in the period immediately following the entry of judgment.11 The question of the court's authority to do so had arisen in Boaz v. Mutual Life Ins. Co. of New York, 146 F.2d 321, 322 (CA8 1944). According to their report, the draftsmen intended Rule 59(e) specifically "to care for a situation such as that arising in Boaz."12 B 12 Consistently with this original understanding, the federal courts generally have invoked Rule 59(e) only to support reconsideration of matters properly encompassed in a decision on the merits. E.g., Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). By contrast, a request for attorney's fees under § 1988 raises legal issues collateral to the main cause of action13—issues to which Rule 59(e) was never intended to apply. 13 Section 1988 provides for awards of attorney's fees only to a "prevailing party." Regardless of when attorney's fees are requested, the court's decision of entitlement to fees will therefore require an inquiry separate from the decision on the merits—an inquiry that cannot even commence until one party has "prevailed." Nor can attorney's fees fairly be characterized as an element of "relief" indistinguishable from other elements. Unlike other judicial relief, the attorney's fees allowed under § 1988 are not compensation for the injury giving rise to an action. Their award is uniquely separable from the cause of action to be proved at trial. See Hutto v. Finney, 437 U.S., at 695, n.24, 98 S.Ct., at 2576, n.24. 14 As the Court of Appeals for the Fifth Circuit recently stated: 15 "[A] motion for attorney's fees is unlike a motion to alter or amend a judgment. It does not imply a change in the judgment, but merely seeks what is due because of the judgment. It is, therefore, not governed by the provisions of Rule 59(e)." Knighton v. Watkins, 616 F.2d 795, 797 (1980).14 III 16 In holding Rule 59(e) applicable to the postjudgment fee request in this case, the Court of Appeals emphasized the need to prevent fragmented appellate review and unfair postjudgment surprise to nonprevailing defendants. See 629 F.2d, at 701-704. These are important concerns. But we do not think that the application of Rule 59(e) to § 1988 fee requests is either necessary or desirable to promote finality, judicial economy, or fairness. A. 17 The application of Rule 59(e) to postjudgment fee requests could yield harsh and unintended consequences. Section 1988 authorizes the award of attorney's fees in constitutional and civil rights litigation of various kinds. In civil rights actions, especially in those involving "relief of an injunctive nature that must prove its efficacy only over a period of time," this Court has recognized that "many final orders may issue in the course of the litigation." Bradley v. Richmond School Bd., 416 U.S. 696, 722-723, 94 S.Ct. 2006, 2021, 40 L.Ed.2d 476 (1974). Yet sometimes it may be unclear even to counsel which orders are and which are not "final judgments." If Rule 59(e) were applicable, counsel would forfeit their right to fees if they did not file a request in conjunction with each "final" order. Cautious to protect their own interests, lawyers predictably would respond by entering fee motions in conjunction with nearly every interim ruling. Yet encouragement of this practice would serve no useful purpose. Neither would litigation over the "finality" of various interim orders in connection with which fee requests were not filed within the 10-day period. 18 The 10-day limit of Rule 59(e) also could deprive counsel of the time necessary to negotiate private settlements of fee questions. If so, the application of Rule 59(e) actually could generate increased litigation of fee questions—a result ironically at odds with the claim that it would promote judicial economy.15 B 19 Section 1988 authorizes the award of attorney's fees "in [the] discretion" of the court. We believe that this discretion will support a denial of fees in cases in which a postjudgment motion unfairly surprises or prejudices the affected party. Moreover, the district courts remain free to adopt local rules establishing timeliness standards for the filing of claims for attorney's fees.16 And of course the district courts generally can avoid piecemeal appeals by promptly hearing and deciding claims to attorney's fees. Such practice normally will permit appeals from fee awards to be considered together with any appeal from a final judgment on the merits.17 IV 20 For the reasons stated in this opinion, the decision of the Court of Appeals is reversed, and the case is remanded for action consistent with this opinion. 21 So ordered. 22 Justice BLACKMUN, concurring in the judgment. 23 I agree with much that is said in the Court's opinion and I therefore concur, of course, in its judgment. I wish, however, that the Court had gone one step further. 24 We granted certiorari in this case, as the Court notes, ante, at 450, to resolve the existing conflict among the Courts of Appeals regarding postjudgment requests for attorney's fees under 42 U.S.C. § 1988. Three Circuits have held that these fee requests are not within Federal Rule of Civil Procedure 59(e), but are within the reach of Rules 54(d) and 58. Two have held that the requests are subject to Rule 59(e). And a sixth has held that such a request is not governed by any of the three Rules. See ante, at 450 and n.9. The Court today settles the conflict so far as Rule 59(e) and its inapplicability to a fee request are concerned. But it leaves unanswered the applicability of Rules 54(d) and 58 because "this question is unnecessary to our disposition of this case." Ante, at this page, n.17. 25 I would answer that question, and hold that Rules 54(d) and 58 also do not apply to postjudgment § 1988 fees requests. I believe that the federal courts and the lawyers that practice in them should have an answer so that we shall not have yet another case to decide before the correct procedure for evaluating such requests is settled for all concerned. 26 I note, happily, that the Court at least touches upon the ultimate answer, ante, at 454, and n. 17, when it observes that district courts are free to adopt local rules. By so saying, the Court comes close to approving the position taken by the United States Court of Appeals for the Eighth Circuit in Obin v. District No. 9, Int'l Assn. of Machinists and Aerospace Workers, 651 F.2d 574 (8th Cir. 1981). I think the Eighth Circuit is correct in its approach to the general problem. Thus, I would approve that approach and have the matter settled, eliminating the inconsistency which the Court leaves between the views of the Fifth, Sixth, and Seventh Circuits on the one hand, and the view of the Eighth Circuit on the other. 1 Rule 59(e) provides: "(e) Motion to Alter or Amend a Judgment "A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment." 2 Civ. No. 76-71 (NH, Nov. 15, 1977), as amended, Civ. No. 76-71 (NH, Dec. 16, 1977). 3 Transcript of the District Court Hearing on Plaintiffs' Motion for Attorney's Fees (Aug. 21, 1979), App. 56, 68-69. 4 The District Court found specifically that the parties' prejudgment "attempts" to negotiate a waiver of costs and fees had proved "nugatory." Id., at 75. 5 The pertinent language of 42 U.S.C. § 1988 provides that "[i]n any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C. 1681 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." 6 Knighton v. Watkins, 616 F.2d 795 (1980). 7 Rule 54(d) provides: "(d) Costs "Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs . . . . Costs may be taxed by the clerk on one day's notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court." Unless so defined by statute, attorney's fees are not generally considered "costs" taxable under Rule 54(d). Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). 8 Rule 58 states in pertinent part: "Entry of the judgment shall not be delayed for taxing of costs." 9 Courts of Appeals for the Fifth, Sixth, and Seventh Circuits have held that postjudgment requests for attorney's fees are not motions to alter or amend a judgment under Rule 59(e), but rather applications for "costs" under Rules 54(d) and 58. See Johnson v. Snyder, 639 F.2d 316, 317 (CA6 1981); Bond v. Stanton, 630 F.2d 1231, 1234 (CA7 1980); Knighton v. Watkins, supra, at 797-798. Like the Court of Appeals for the First Circuit in this case, the Court of Appeals for the Tenth Circuit has held squarely that postjudgment requests for fees are motions to alter or amend a judgment under Rule 59(e). See Glass v. Pfeffer, 657 F.2d 252 (1981). The Court of Appeals for the Eighth Circuit has taken still a third position: that a postjudgment motion for attorney's fees raises a "collateral and independent claim" that is not governed either by Rule 59(e) or by the "costs" provisions of Rules 54(d) and 58. Obin v. District No. 9, Int'l Assn. of Machinists and Aerospace Workers, 651 F.2d 574, 582 (CA8 1981). 10 451 U.S. 982, 101 S.Ct. 2313, 68 L.Ed.2d 839 (1981). 11 Notes of Advisory Committee on 1946 Amendment to Rules, 28 U.S.C., p. 491; 5 F.R.D. 433, 476 (1946). 12 Ibid. 13 Petitioner argues that the "collateral" and "independent" character of his request for attorney's fees is conclusively established by Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). In Sprague this Court considered the power of a federal court to award counsel fees pursuant to an application filed several years after the entry of a judgment on the merits. Rejecting arguments that the request sought an impermissible reopening of the underlying judgment, the Court held that the petition for reimbursement represented "an independent proceeding supplemental to the original proceeding and not a request for a modification of the original decree." Id., at 170, 59 S.Ct. at 781. The passage of time thus presented no bar to an award of fees. Although Sprague was decided under the then-applicable rules of equity, the Court suggested that the same result would follow under the new Federal Rules of Civil Procedure. Id., at 169, n.9, 59 S.Ct. at 781 n.9. This case arises in a posture different from that of Sprague. In Sprague the prevailing plaintiff had produced a "benefit" commonly available to others similarly situated. Although she "neither avowed herself to be the representative of a class nor . . . establish[ed] a fund in which others could participate," id., at 166, 59 S.Ct. at 779, her lawsuit had a stare decisis effect that inured to the benefit of others asserting similar claims. It was from the benefits accrued by them—not, as in this case, from the defendant—that the plaintiff sought an equitable award of fees. Because of this difference between the cases, we cannot agree that Sprague controls the question now before us. Nonetheless, we agree with petitioner to this extent: Sprague at least establishes that fee questions are not inherently or necessarily subsumed by a decision on the merits. See also New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 66, 100 S.Ct. 2024, 2032, 64 L.Ed.2d 723 (1980) (a claimed entitlement to attorney's fees is sufficiently independent of the merits action under Title VII to support a federal suit "solely to obtain an award of attorney's fees for legal work done in state and local proceedings"). 14 There is implicit support for this view in decisions of the Courts of Appeals holding that decisions on the merits may be "final" and "appealable" prior to the entry of a fee award. See, e.g., Memphis Sheraton Corp. v. Kirkley, 614 F.2d 131, 133 (CA6 1980); Hidell v. International Diversified Investments, 520 F.2d 529, 532, n.4 (CA7 1975); see also Obin v. District 9, Int'l Assn. of Machinists and Aerospace Workers, 651 F.2d at 583-584. If a merits judgment is final and appealable prior to the entry of a fee award, then the remaining fee issue must be "collateral" to the decision on the merits. Conversely, the collateral character of the fee issue establishes that an outstanding fee question does not bar recognition of a merits judgment as "final" and "appealable." Obin v. District No. 9, Int'l Assn. of Machinists and Aerospace Workers, supra, at 584. Although "piecemeal" appeals of merits and fee questions generally are undesirable, district courts have ample authority to deal with this problem. See infra, at 454, and n.16. 15 As an additional reason for finding Rule 59(e) inapplicable to postjudgment fee requests, the petitioner and amici have urged that prejudgment fee negotiations could raise an inherent conflict of interest between the attorney and client. Because the defendant is likely to be concerned about his total liability, it is suggested, he may offer a lump-sum settlement, but remain indifferent as to its distribution as "damages" or "attorney's fees." In pursuing negotiations, the argument continues, the lawyer must decide what allocation to seek as between lawyer and client. Accordingly, petitioner argues, to avoid this conflict of interest any fee negotiations should routinely be deferred until after the entry of a merits judgment. Although sensitive to the concern that petitioner raises, we decline to rely on this proffered basis. In considering whether to enter a negotiated settlement, a defendant may have good reason to demand to know his total liability from both damages and fees. Although such situations may raise difficult ethical issues for a plaintiff's attorney, we are reluctant to hold that no resolution is ever available to ethical counsel. 16 See, e.g., Obin v. District No. 9, Int'l Assn. of Machinists and Aerospace Workers, supra, at 583 (recommending adoption of "a uniform rule requiring the filing of a claim for attorney's fees within twenty-one days after entry of judgment" ); Knighton v. Watkins, 616 F.2d, at 798, n.2 (practices governing requests for attorney's fees "can be handled best by local rule" ). As different jurisdictions have established different procedures for the filing of fee applications, there may be valid local reasons for establishing different time limits. 17 The petitioner has urged us to hold expressly that the § 1988 provision for attorney's fees "as part of . . . costs" establishes that postjudgment fee requests constitute motions for "costs" under Rules 54(d) and 58, which specify no time barrier for motions for "costs." Because this question is unnecessary to our disposition of this case, we do not address it. We note that the district courts would be free to adopt local rules establishing standards for timely filing of requests for costs, even if attorney's fees were so treated. See Knighton v. Watkins, supra, at 798, n.2. Further, the district courts retain discretion under Rules 54(d) and 58 to deny even motions for costs that are filed with unreasonable tardiness.

56

455 U.S. 509 102 S.Ct. 1198 71 L.Ed.2d 379 Jim ROSE, Warden, Petitionerv.Noah Harrison LUNDY. No. 80-846. Argued Oct. 14, 1981. Decided March 3, 1982. Syllabus Title 28 U.S.C. §§ 2254(b) and (c) provide that a state prisoner's application for a writ of habeas corpus in a federal district court based on an alleged federal constitutional violation will not be granted unless the applicant has exhausted the remedies available in the state courts. After respondent was convicted of certain charges in a Tennessee state court and his convictions were affirmed, he unsuccessfully sought postconviction relief in a state court. He then filed a petition in Federal District Court for a writ of habeas corpus under § 2254, alleging four specified grounds of relief. The District Court granted the writ, notwithstanding the petition included both claims that had not been exhausted in the state courts and those that had been. The Court of Appeals affirmed. Held : The judgment is reversed and the case is remanded. 624 F.2d 1100, reversed and remanded. John C. Zimmermann, Nashville, Tenn., for petitioner, pro hac vice, by special leave of Court. D. Shannon Smith, Cincinnati, Ohio, for respondent. Justice O'CONNOR delivered the opinion of the Court, except as to Part III-C. 1 In this case we consider whether the exhaustion rule in 28 U.S.C. §§ 2254(b), (c) requires a federal district court to dismiss a petition for a writ of habeas corpus containing any claims that have not been exhausted in the state courts. Because a rule requiring exhaustion of all claims furthers the purposes underlying the habeas statute, we hold that a district court must dismiss such "mixed petitions," leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court. 2 * Following a jury trial, respondent Noah Lundy was convicted on charges of rape and crime against nature, and sentenced to the Tennessee State Penitentiary.1 After the Tennessee Court of Criminal Appeals affirmed the convictions and the Tennessee Supreme Court denied review, the respondent filed an unsuccessful petition for post-conviction relief in the Knox County Criminal Court. 3 The respondent subsequently filed a petition in Federal District Court for a writ of habeas corpus under 28 U.S.C. § 2254, alleging four grounds for relief: (1) that he had been denied the right to confrontation because the trial court limited the defense counsel's questioning of the victim; (2) that he had been denied the right to a fair trial because the prosecuting attorney stated that the respondent had a violent character; (3) that he had been denied the right to a fair trial because the prosecutor improperly remarked in his closing argument that the State's evidence was uncontradicted; and (4) that the trial judge improperly instructed the jury that every witness is presumed to swear the truth. After reviewing the state court records, however, the District Court concluded that it could not consider claims three and four "in the constitutional framework" because the respondent had not exhausted his state remedies for those grounds. The court nevertheless stated that "in assessing the atmosphere of the cause taken as a whole these items may be referred to collaterally."2 4 Apparently in an effort to assess the "atmosphere" of the trial, the District Court reviewed the state trial transcript and identified 10 instances of prosecutorial misconduct, only five of which the respondent had raised before the state courts.3 In addition, although purportedly not ruling on the respondent's fourth ground for relief—that the state trial judge improperly charged that "every witness is presumed to swear the truth"—the court nonetheless held that the jury instruction, coupled with both the restriction of counsel's cross-examination of the victim and the prosecutor's "personal testimony" on the weight of the State's evidence, see n. 3, supra, violated the respondent's right to a fair trial. In conclusion, the District Court stated: 5 "Also, subject to the question of exhaustion of state remedies, where there is added to the trial atmosphere the comment of the Attorney General that the only story presented to the jury was by the state's witnesses there is such mixture of violations that one cannot be separated from and considered independently of the others. 6 * * * * * 7 ". . . Under the charge as given, the limitation of cross examination of the victim, and the flagrant prosecutorial misconduct this court is compelled to find that petitioner did not receive a fair trial, his Sixth Amendment rights were violated and the jury poisoned by the prosecutorial misconduct."4 8 In short, the District Court considered several instances of prosecutorial misconduct never challenged in the state trial or appellate courts, or even raised in the respondent's habeas petition. 9 The Sixth Circuit affirmed the judgment of the District Court, 624 F.2d 1100 (1980), concluding in an unreported order that the court properly found that the respondent's constitutional rights had been "seriously impaired by the improper limitation of his counsel's cross-examination of the prosecutrix and by the prosecutorial misconduct." The court specifically rejected the State's argument that the District Court should have dismissed the petition because it included both exhausted and unexhausted claims. II 10 The petitioner urges this Court to apply a "total exhaustion" rule requiring district courts to dismiss every habeas corpus petition that contains both exhausted and unexhausted claims.5 The petitioner argues at length that such a rule furthers the policy of comity underlying the exhaustion doctrine because it gives the state courts the first opportunity to correct federal constitutional errors and minimizes federal interference and disruption of state judicial proceedings. The petitioner also believes that uniform adherence to a total exhaustion rule reduces the amount of piecemeal habeas litigation. 11 Under the petitioner's approach, a district court would dismiss a petition containing both exhausted and unexhausted claims, giving the prisoner the choice of returning to state court to litigate his unexhausted claims, or of proceeding with only his exhausted claims in federal court. The petitioner believes that a prisoner would be reluctant to choose the latter route since a district court could, in appropriate circumstances under Habeas Corpus Rule 9(b), dismiss subsequent federal habeas petitions as an abuse of the writ.6 In other words, if the prisoner amended the petition to delete the unexhausted claims or immediately refiled in federal court a petition alleging only his exhausted claims, he could lose the opportunity to litigate his presently unexhausted claims in federal court. This argument is addressed in Part III-C of this opinion. 12 In order to evaluate the merits of the petitioner's arguments, we turn to the habeas statute, its legislative history, and the policies underlying the exhaustion doctrine. III A. 13 The exhaustion doctrine existed long before its codification by Congress in 1948. In Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886), this Court wrote that as a matter of comity, federal courts should not consider a claim in a habeas corpus petition until after the state courts have had an opportunity to act: 14 "The injunction to hear the case summarily, and thereupon 'to dispose of the party as law and justice require' does not deprive the court of discretion as to the time and mode in which it will exert the powers conferred upon it. That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution." 15 Subsequent cases refined the principle that state remedies must be exhausted except in unusual circumstances. See, e.g., United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 17-19, 46 S.Ct. 1, 2-3, 70 L.Ed. 138 (1925) (holding that the lower court should have dismissed the petition because none of the questions had been raised in the state courts. "In the regular and ordinary course of procedure, the power of the highest state court in respect of such questions should first be exhausted"). In Ex parte Hawk, 321 U.S. 114, 117, 64 S.Ct. 448, 450, 88 L.Ed. 572 (1944), this Court reiterated that comity was the basis for the exhaustion doctrine: "it is a principle controlling all habeas corpus petitions to the federal courts, that those courts will interfere with the administration of justice in the state courts only 'in rare cases where exceptional circumstances of peculiar urgency are shown to exist.' "7 None of these cases, however, specifically applied the exhaustion doctrine to habeas petitions containing both exhausted and unexhausted claims. 16 In 1948, Congress codified the exhaustion doctrine in 28 U.S.C. § 2254, citing Ex parte Hawk as correctly stating the principle of exhaustion.8 Section 2254,9 however, does not directly address the problem of mixed petitions. To be sure, the provision states that a remedy is not exhausted if there exists a state procedure to raise "the question presented," but we believe this phrase to be too ambiguous to sustain the conclusion that Congress intended to either permit or prohibit review of mixed petitions. Because the legislative history of § 2254, as well as the pre-1948 cases, contains no reference to the problem of mixed petitions,10 in all likelihood Congress never thought of the problem.11 Consequently, we must analyze the policies underlying the statutory provision to determine its proper scope. Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525 (1975) (" 'In expounding a statute, we must . . . look to the provisions of the whole law, and to its object and policy' " (citations omitted)); United States v. Bacto-Unidisk, 394 U.S. 784, 799, 89 S.Ct. 1410, 1418, 22 L.Ed.2d 726 (1969) ("where the statute's language seem[s] insufficiently precise, the 'natural way' to draw the line 'is in light of the statutory purpose' " (citation omitted)); United States v. Sisson, 399 U.S. 267, 297-298, 90 S.Ct. 2117, 2134, 26 L.Ed.2d 608 (1970) ("The axiom that courts should endeavor to give statutory language that meaning that nurtures the policies underlying legislation is one that guides us when circumstances not plainly covered by the terms of a statute are subsumed by the underlying policies to which Congress was committed"); Unexcelled Chemical Corp. v. United States, 345 U.S. 59, 64, 73 S.Ct. 580, 583, 97 L.Ed. 821 (1953) ("Arguments of policy are relevant when for example a statute has an hiatus that must be filled or there are ambiguities in the legislative language that must be resolved"). B 17 The exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 490-491, 93 S.Ct. 1123, 1127, 35 L.Ed.2d 443 (1973).12 Under our federal system, the federal and state "courts [are] equally bound to guard and protect rights secured by the Constitution." Ex parte Royall, 117 U.S., at 251, 6 S.Ct., at 740. Because "it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation," federal courts apply the doctrine of comity, which "teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter." Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950). See Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981) (per curiam ) (noting that the exhaustion requirement "serves to minimize friction between our federal and state systems of justice by allowing the State an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights"). 18 A rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error. As the number of prisoners who exhaust all of their federal claims increases, state courts may become increasingly familiar with and hospitable toward federal constitutional issues. See Braden v. 30th Judicial Circuit Court of Kentucky, supra, 410 U.S. at 490, 93 S.Ct. at 1127. Equally as important, federal claims that have been fully exhausted in state courts will more often be accompanied by a complete factual record to aid the federal courts in their review. Cf. 28 U.S.C. § 2254(d) (requiring a federal court reviewing a habeas petition to presume as correct factual findings made by a state court). 19 The facts of the present case underscore the need for a rule encouraging exhaustion of all federal claims. In his opinion, the District Court Judge wrote that "there is such mixture of violations that one cannot be separated from and considered independently of the others." Because the two unexhausted claims for relief were intertwined with the exhausted ones, the judge apparently considered all of the claims in ruling on the petition. Requiring dismissal of petitions containing both exhausted and unexhausted claims will relieve the district courts of the difficult if not impossible task of deciding when claims are related, and will reduce the temptation to consider unexhausted claims. 20 In his dissent, Justice STEVENS suggests that the District Court properly evaluated the respondent's two exhausted claims "in the context of the entire trial." Post, at 541. Unquestionably, however, the District Court erred in considering unexhausted claims, for § 2254(b) expressly requires the prisoner to exhaust "the remedies available in the courts of the State." See n. 9, supra. Moreover, to the extent that exhausted and unexhausted claims are interrelated, the general rule among the Courts of Appeals is to dismiss mixed habeas petitions for exhaustion of all such claims. See, e.g., Triplett v. Wyrick, 549 F.2d 57 (CA8 1977); Miller v. Hall, 536 F.2d 967 (CA1 1976); Hewett v. North Carolina, 415 F.2d 1316 (CA4 1969). 21 Rather than an "adventure in unnecessary lawmaking" (STEVENS, J., post, at 539), our holdings today reflect our interpretation of a federal statute on the basis of its language and legislative history, and consistent with its underlying policies. There is no basis to believe that today's holdings will "complicate and delay" the resolution of habeas petitions (STEVENS, J., post, at 550), or will serve to "trap the unwary pro se prisoner." (BLACKMUN, J., post, at 530.) On the contrary, our interpretation of §§ 2254(b), (c) provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court. Just as pro se petitioners have managed to use the federal habeas machinery, so too should they be able to master this straightforward exhaustion requirement. Those prisoners who misunderstand this requirement and submit mixed petitions nevertheless are entitled to resubmit a petition with only exhausted claims or to exhaust the remainder of their claims. 22 Rather than increasing the burden on federal courts, strict enforcement of the exhaustion requirement will encourage habeas petitioners to exhaust all of their claims in state court and to present the federal court with a single habeas petition. To the extent that the exhaustion requirement reduces piecemeal litigation, both the courts and the prisoners should benefit, for as a result the district court will be more likely to review all of the prisoner's claims in a single proceeding, thus providing for a more focused and thorough review. C 23 The prisoner's principal interest, of course, is in obtaining speedy federal relief on his claims. See Braden v. 30th Judicial Circuit Court of Kentucky, supra, 410 U.S. at 490, 93 S.Ct. at 1127. A total exhaustion rule will not impair that interest since he can always amend the petition to delete the unexhausted claims, rather than returning to state court to exhaust all of his claims. By invoking this procedure, however, the prisoner would risk forfeiting consideration of his unexhausted claims in federal court. Under 28 U.S.C. § 2254 Rule 9(b), a district court may dismiss subsequent petitions if it finds that "the failure of the petitioner to assert those [new] grounds in a prior petition constituted an abuse of the writ." See n. 6, supra. The Advisory Committee to the Rules notes that Rule 9(b) incorporates the judge-made principle governing the abuse of the writ set forth in Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963), where this Court stated: 24 "[I]f a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. The same may be true if, as in Wong Doo, the prisoner deliberately abandons one of his grounds at the first hearing. Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay."13 25 See Advisory Committee Note to Habeas Corpus Rule 9(b), 28 U.S.C., p. 273. Thus a prisoner who decides to proceed only with his exhausted claims and deliberately sets aside his unexhausted claims risks dismissal of subsequent federal petitions. IV 26 In sum, because a total exhaustion rule promotes comity and does not unreasonably impair the prisoner's right to relief, we hold that a district court must dismiss habeas petitions containing both unexhausted and exhausted claims.14 Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. 27 It is so ordered. 28 Justice BLACKMUN, concurring in the judgment. 29 The important issue before the Court in this case is whether the conservative "total exhaustion" rule espoused now by two Courts of Appeals, the Fifth and the Ninth Circuits, see ante, at 513, n. 5, is required by 28 U.S.C. §§ 2254(b) and (c), or whether the approach adopted by eight other Courts of Appeals—that a district court may review the exhausted claims of a mixed petition is the proper interpretation of the statute. On this basic issue, I firmly agree with the majority of the Courts of Appeals. 30 I do not dispute the value of comity when it is applicable and productive of harmony between state and federal courts, nor do I deny the principle of exhaustion that §§ 2254(b) and (c) so clearly embrace. What troubles me is that the "total exhaustion" rule, now adopted by this Court, can be read into the statute, as the Court concedes, ante, at 516-517, only by sheer force; that it operates as a trap for the uneducated and indigent pro se prisoner-applicant; that it delays the resolution of claims that are not frivolous; and that it tends to increase, rather than to alleviate, the caseload burdens on both state and federal courts. To use the old expression, the Court's ruling seems to me to "throw the baby out with the bath water." Although purporting to rely on the policies upon which the exhaustion requirement is based, the Court uses that doctrine as "a blunderbuss to shatter the attempt at litigation of constitutional claims without regard to the purposes that underlie the doctrine and that called it into existence." Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 490, 93 S.Ct. 1123, 1127, 35 L.Ed.2d 443 (1973). Those purposes do not require the result the Court reaches; in fact, they support the approach taken by the Court of Appeals in this case and call for dismissal of only the unexhausted claims of a mixed habeas petition. Moreover, to the extent that the Court's ruling today has any impact whatsoever on the workings of federal habeas, it will alter, I fear, the litigation techniques of very few habeas petitioners. 31 * A. 32 The Court correctly observes, ante, at 516-517, that neither the language nor the legislative history of the exhaustion provisions of §§ 2254(b) and (c) mandates dismissal of a habeas petition containing both exhausted and unexhausted claims. Nor does precedent dictate the result reached here. In Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), for example, the Court ruled that "once the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied." Id., at 275, 92 S.Ct. at 512 (emphasis supplied). Respondent complied with the direction in Picard with respect to his challenges to the trial court's limitation of cross-examination of the victim and to at least some of the prosecutor's allegedly improper comments. 33 The Court fails to note, moreover, that prisoners are not compelled to utilize every available state procedure in order to satisfy the exhaustion requirement. Although this Court's precedents do not address specifically the appropriate treatment of mixed habeas petitions, they plainly suggest that state courts need not inevitably be given every opportunity to safeguard a prisoner's constitutional rights and to provide him relief before a federal court may entertain his habeas petition.1 B 34 In reversing the judgment of the Sixth Circuit, the Court focuses, as it must, on the purposes the exhaustion doctrine is intended to serve. I do not dispute the importance of the exhaustion requirement or the validity of the policies on which it is based. But I cannot agree that those concerns will be sacrificed by permitting district courts to consider exhausted habeas claims. 35 The first interest relied on by the Court involves an offshoot of the doctrine of federal-state comity. The Court hopes to preserve the state courts' role in protecting constitutional rights, as well as to afford those courts an opportunity to correct constitutional errors and—somewhat patronizingly—to "become increasingly familiar with and hospitable toward federal constitutional issues." Ante, at 519. My proposal, however, is not inconsistent with the Court's concern for comity: indeed, the state courts have occasion to rule first on every constitutional challenge, and have ample opportunity to correct any such error, before it is considered by a federal court on habeas. 36 In some respects, the Court's ruling appears more destructive than solicitous of federal-state comity. Remitting a habeas petitioner to state court to exhaust a patently frivolous claim before the federal court may consider a serious, exhausted ground for relief hardly demonstrates respect for the state courts. The state judiciary's time and resources are then spent rejecting the obviously meritless unexhausted claim, which doubtless will receive little or no attention in the subsequent federal proceeding that focuses on the substantial exhausted claim. I can "conceive of no reason why the State would wish to burden its judicial calendar with a narrow issue the resolution of which is predetermined by established federal principles." Roberts v. LaVallee, 389 U.S. 40, 43, 88 S.Ct. 194, 196, 19 L.Ed.2d 41 (1967).2 37 The second set of interests relied upon by the Court involves those of federal judicial administration—ensuring that a § 2254 petition is accompanied by a complete factual record to facilitate review and relieving the district courts of the responsibility for determining when exhausted and unexhausted claims are interrelated. If a prisoner has presented a particular challenge in the state courts, however, the habeas court will have before it the complete factual record relating to that claim.3 And the Court's Draconian approach is hardly necessary to relieve district courts of the obligation to consider exhausted grounds for relief when the prisoner also has advanced interrelated claims not yet reviewed by the state courts. When the district court believes, on the facts of the case before it, that the record is inadequate or that full consideration of the exhausted claims is impossible, it has always been free to dismiss the entire habeas petition pending resolution of unexhausted claims in the state courts. Certainly, it makes sense to commit these decisions to the discretion of the lower federal courts, which will be familiar with the specific factual context of each case. 38 The federal courts that have addressed the issue of interrelatedness have had no difficulty distinguishing related from unrelated habeas claims. Mixed habeas petitions have been dismissed in toto when "the issues before the federal court logically depend for their relevance upon resolution of an unexhausted issue," Miller v. Hall, 536 F.2d 967, 969 (CA1 1976), or when consideration of the exhausted claim "would necessarily be affected . . ." by the unexhausted claim, United States ex rel. McBride v. Fay, 370 F.2d 547, 548 (CA2 1966). Thus, some of the factors to be considered in determining whether a prisoner's grounds for collateral relief are interrelated are whether the claims are based on the same constitutional right or factual issue, and whether they require an understanding of the totality of the circumstances and therefore necessitate examination of the entire record. Compare Johnson v. United States District Court, 519 F.2d 738, 740 (CA8 1975) (prisoner's challenge to the voluntariness of his guilty plea intertwined with his claims that at the time of the plea he was mentally incompetent and without effective assistance of counsel); United States ex rel. DeFlumer v. Mancusi, 380 F.2d 1018, 1019 (CA2 1967) (dispute regarding the voluntariness of the prisoner's guilty plea "would necessarily affect the consideration of the coerced confession claim, because a voluntary guilty plea entered on advice of counsel is a waiver of all non-jurisdictional defects in any prior stage of the proceedings"); United States ex rel. McBride v. Fay, 370 F.2d, at 548; and United States ex rel. Martin v. McMann, 348 F.2d 896, 898 (CA2 1965) (defendant's challenge to the voluntariness of his confession related to his claim that the confession was obtained in violation of his right to the assistance of counsel and without adequate warnings), with Miller v. Hall, 536 F.2d, at 969 (no problem of interrelationship when exhausted claims involved allegations that the police lacked probable cause to search defendant's van and had no justification for failing to secure a search warrant, and unexhausted claim maintained that the arresting officer had committed perjury at the suppression hearing); and United States ex rel. Levy v. McMann, 394 F.2d 402, 404 (CA2 1968). 39 The Court's interest in efficient administration of the federal courts therefore does not require dismissal of mixed habeas petitions. In fact, that concern militates against the approach taken by the Court today. In order to comply with the Court's ruling, a federal court now will have to review the record in a § 2254 proceeding at least summarily in order to determine whether all claims have been exhausted. In many cases a decision on the merits will involve only negligible additional effort. And in other cases the court may not realize that one of a number of claims is unexhausted until after substantial work has been done. If the district court must nevertheless dismiss the entire petition until all grounds for relief have been exhausted, the prisoner will likely return to federal court eventually, thereby necessitating duplicative examination of the record and consideration of the exhausted claims—perhaps by another district judge. See Justice STEVENS' dissenting opinion, post, at 545. Moreover, when the § 2254 petition does find its way back to federal court, the record on the exhausted grounds for relief may well be stale and resolution of the merits more difficult.4 40 The interest of the prisoner and of society in "preserv[ing] the writ of habeas corpus as a 'swift and imperative remedy in all cases of illegal restraint or confinement,' " Braden v. 30th Judicial Circuit Court of Ky., 410 U.S., at 490, 93 S.Ct., at 1127, is the final policy consideration to be weighed in the balance. Compelling the habeas petitioner to repeat his journey through the entire state and federal legal process before receiving a ruling on his exhausted claims obviously entails substantial delay.5 And if the prisoner must choose between undergoing that delay and forfeiting unexhausted claims, see ante, at 520-521, society is likewise forced to sacrifice either the swiftness of habeas or its availability to remedy all unconstitutional imprisonments.6 Dismissing only unexhausted grounds for habeas relief, while ruling on the merits of all unrelated exhausted claims, will diminish neither the promptness nor the efficacy of the remedy and, at the same time, will serve the state and federal interests described by the Court.7 II 41 The Court's misguided approach appears to be premised on the specter of "the sophisticated litigious prisoner intent upon a strategy of piecemeal litigation . . .," whose aim is to have more than one day in court. Galtieri v. Wainwright, 582 F.2d 348, 369 (CA5 1978) (en banc) (dissenting opinion). Even if it could be said that the Court's view accurately reflects reality, its ruling today will not frustrate the Perry Masons of the prison populations. To avoid dismissal, they will simply include only exhausted claims in each of many successive habeas petitions. Those subsequent petitions may be dismissed, as Justice BRENNAN observes, only if the prisoner has "abused the writ" by deliberately choosing, for purposes of delay, not to include all his claims in one petition. See post, at 535-536 (opinion concurring in part and dissenting in part). And successive habeas petitions that meet the "abuse of the writ" standard have always been subject to dismissal, irrespective of the Court's treatment of mixed petitions today. The Court's ruling in this case therefore provides no additional incentive whatsoever to consolidate all grounds for relief in one § 2254 petition. 42 Instead of deterring the sophisticated habeas petitioner who understands, and wishes to circumvent, the rules of exhaustion, the Court's ruling will serve to trap the unwary pro se prisoner who is not knowledgeable about the intricacies of the exhaustion doctrine and whose only aim is to secure a new trial or release from prison. He will consolidate all conceivable grounds for relief in an attempt to accelerate review and minimize costs. But, under the Court's approach, if he unwittingly includes in a § 2254 motion a claim not yet presented to the state courts, he risks dismissal of the entire petition and substantial delay before a ruling on the merits of his exhausted claims. 43 The Court suggests that a prisoner who files a mixed habeas petition will have the option of amending or resubmitting his complaint after deleting the unexhausted claims. See ante, at 510, 520. To the extent that prisoners are permitted simply to strike unexhausted claims from a § 2254 petition and then proceed as if those claims had never been presented, I fail to understand what all the fuss is about. In that event, the Court's approach is virtually indistinguishable from that of the Court of Appeals, which directs the district court itself to dismiss unexhausted grounds for relief. 44 I fear, however, that prisoners who mistakenly submit mixed petitions may not be treated uniformly. A prisoner's opportunity to amend a § 2254 petition may depend on his awareness of the existence of that alternative or on a sympathetic district judge who informs him of the option and permits the amendment. See Fed.Rule Civ.Proc. 15(a). If the prisoner is required to refile the petition after striking the unexhausted claims, he may have to begin the process anew and thus encounter substantial delay before his complaint again comes to the district court's attention. See STEVENS, J., post, at 546, n. 15. 45 Adopting a rule that will afford knowledgeable prisoners more favorable treatment is, I believe, antithetical to the purposes of the habeas writ. Instead of requiring a habeas petitioner to be familiar with the nuances of the exhaustion doctrine and the process of amending a complaint, I would simply permit the district court to dismiss unexhausted grounds for relief and consider exhausted claims on the merits. III 46 Although I would affirm the Court of Appeals' ruling that the exhaustion doctrine requires dismissal of only the unexhausted claims in a mixed habeas petition, I would remand the case for reconsideration of the merits of respondent's constitutional arguments. As the Court notes, the District Court erred in considering both exhausted and unexhausted claims when ruling on Lundy's § 2254 petition. See ante, at 511-513. The Court of Appeals attempted to recharacterize the District Court's grant of relief as premised on only the exhausted claims and ignored the District Court's conclusion that the exhausted and unexhausted claims were interrelated. See App. 95-96.8 47 Even were the Court of Appeals' recharacterization accurate, that court affirmed the District Court on the ground that respondent's constitutional rights had been "seriously impaired by the improper limitation of his counsel's cross-examination of the prosecutrix and by the prosecutorial misconduct". Id., at 96. The court does not appear to have specified which allegations of prosecutorial misconduct it considered in reaching this conclusion, and the record does not reflect whether the court improperly took into account instances of purported misconduct that respondent has never challenged in state court. See ante, at 511-512, n. 3. This ambiguity is of some importance because the court's general statement does not indicate whether the court would have granted habeas relief on the confrontation claim alone, or whether its judgment is based on the combined effect of the limitation of cross-examination and the asserted prosecutorial misconduct. 48 I therefore would remand the case, directing that the courts below dismiss respondent's unexhausted claims and examine those that have been properly presented to the state courts in order to determine whether they are interrelated with the unexhausted grounds and, if not, whether they warrant collateral relief. 49 Justice BRENNAN, with whom Justice MARSHALL joins, concurring in part and dissenting in part. 50 I join the opinion of the Court (Parts I, II, III-A, III-B, and IV, ante ), but I do not join in the opinion of the plurality (Part III-C, ante ). I agree with the Court's holding that the exhaustion requirement of 28 U.S.C. §§ 2254(b), (c) obliges a federal district court to dismiss, without consideration on the merits, a habeas corpus petition from a state prisoner when that petition contains claims that have not been exhausted in the state courts, "leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court." Ante, at 510. But I disagree with the plurality's view, in Part III-C, that a habeas petitioner must "risk forfeiting consideration of his unexhausted claims in federal court" if he "decides to proceed only with his exhausted claims and deliberately sets aside his unexhausted claims" in the face of the district court's refusal to consider his "mixed" petition. Ante, at 520, 521. The issue of Rule 9(b)'s proper application to successive petitions brought as the result of our decision today is not before us—it was not among the questions presented by petitioner, nor was it briefed and argued by the parties. Therefore, the issue should not be addressed until we have a case presenting it. In any event, I disagree with the plurality's proposed disposition of the issue. In my view, Rule 9(b) cannot be read to permit dismissal of a subsequent petition under the circumstances described in the plurality's opinion. 51 * The plurality recognizes, as it must, that in enacting Rule 9(b) Congress explicitly adopted the "abuse of the writ" standard announced in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). Ante, at 521. The legislative history of Rule 9(b) illustrates the meaning of that standard. As transmitted by this Court to Congress, Rule 9(b) read as follows: 52 "SUCCESSIVE PETITIONS. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition is not excusable." H.R.Rep.No. 94-1471, p. 8 (1976) U.S.Code Cong. & Admin.News, pp. 2478, 2485 (emphasis added). 53 The interpretive gloss placed upon proposed Rule 9(b) by this Court's Advisory Committee on the Rules Governing § 2254 Cases in the United States District Courts was that: 54 "With reference to a successive application asserting a new ground or one not previously decided on the merits, the court in Sanders noted: 55 [']In either case, full consideration of the merits of the new application can be avoided only if there has been an abuse of the writ * * * and this the Government has the burden of pleading. * * * 56 [']Thus, for example, if a prisoner deliberately 57 withholds one of two grounds for federal collateral relief at the time of filing his first application, * * * he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground.['] 373 U.S., at 17-18 [83 S.Ct. at 1078]. 58 "Subdivision (b) [of Rule 9] has incorporated this principle and requires that the judge find petitioner's failure to have asserted the new grounds in the prior petition to be inexcusable." Advisory Committee Note to Rule 9(b), 28 U.S.C., p. 273 (emphasis added). 59 But Congress did not believe that this Court's transmitted language, and the Advisory Committee Note explaining it, went far enough in protecting a state prisoner's right to gain habeas relief. In its Report on proposed Rule 9(b), the House Judiciary Committee stated that, in its view, "the 'not excusable' language [of the proposed Rule] created a new and undefined standard that gave a judge too broad a discretion to dismiss a second or successive petition." H.R.Rep.No. 94-1471, supra, at 5 U.S.Code Cong. & Admin.News, p. 2482 (emphasis added). The Judiciary Committee thus recommended that the words, "is not excusable," be replaced by the words, "constituted an abuse of the writ." Id., at 5, 8, U.S.Code Cong. & Admin.News, pp. 2482, 2485. This change, the Committee believed, would bring Rule 9(b) "into conformity with existing law." Id., at 5, U.S.Code Cong. & Admin.News, p. 2482. It was in the Judiciary Committee's revised form—employing the "abusive" standard for dismissal—that Rule 9(b) became law. II 60 It is plain that a proper construction of Rule 9(b) must be consistent with its legislative history. This necessarily entails an accurate interpretation of the Sanders standard, on which the Rule is based. It also requires consideration of the explanatory language of the Advisory Committee, and Congress' subsequent strengthening amendment to the text of the Rule. But the plurality, entirely misreading Sanders, embraces an interpretation of the Rule 9(b) standard that is manifestly incorrect, and patently inconsistent with the Advisory Committee's exposition and Congress' expressed expectations. 61 The relevant language from Sanders, quoted by the plurality, ante, at 521, is as follows: 62 "[I]f a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. The same may be true if, as in Wong Doo, the prisoner deliberately abandons one of his grounds at the first hearing. Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay." 373 U.S., at 18, 83 S.Ct., at 1078. 63 From this language the plurality concludes: "Thus a prisoner who decides to proceed only with his exhausted claims and deliberately sets aside his unexhausted claims risks dismissal of subsequent federal petitions." Ante, at 521. 64 The plurality's conclusion simply distorts the meaning of the quoted language. Sanders was plainly concerned with "a prisoner deliberately withhold[ing] one of two grounds" for relief "in the hope of being granted two hearings rather than one or for some other such reason." Sanders also notes that waiver might be inferred where "the prisoner deliberately abandons one of his grounds at the first hearing." Finally, Sanders states that dismissal is appropriate either when the court is faced with "needless piecemeal litigation" or with "collateral proceedings whose only purpose is to vex, harass, or delay." Thus Sanders made it crystal clear that dismissal for "abuse of the writ" is only appropriate when a prisoner was free to include all of his claims in his first petition, but knowingly and deliberately chose not to do so in order to get more than "one bite at the apple." The plurality's interpretation obviously would allow dismissal in a much broader class of cases than Sanders permits. 65 This Court is free, of course, to overrule Sanders. But even that course would not support the plurality's conclusion. For Congress incorporated the "judge-made" Sanders principle into positive law when it enacted Rule 9(b). That principle, as explained by the Advisory Committee's Note, at least "requires that the [habeas] judge find petitioner's failure to have asserted the new grounds in the prior petition to be inexcusable." Indeed, Congress went beyond the Advisory Committee's language, believing that the "inexcusable" standard made the dismissal of successive petitions too easy. Congress instead required the habeas court to find a successive petitioner's behavior "abusive" before the drastic remedy of dismissal could be employed. That is how Congress understood the Sanders principle, and the plurality is simply not free to ignore that understanding, because it is now embedded in the statutory language of Rule 9(b). III 66 The plurality's attempt to apply its interpretation of Sanders only reinforces my conclusion that the plurality has misread that case. The plurality hypothesizes a prisoner who presents a "mixed" habeas petition that is dismissed without any examination of its claims on the merits, and who, after his exhausted claims are rejected, presents a second petition containing the previously unexhausted claims. The plurality then equates the position of such a prisoner with that of the "abusive" habeas petitioner discussed in theSanders passage. But in my view, the position of the plurality's hypothetical prisoner is obviously very different. If the habeas court refuses to entertain a "mixed" petition—as it must under the plurality's view—then the prisoner's "abandonment" of his unexhausted claims cannot in any meaningful sense be termed "deliberate," as that term was used in Sanders. There can be no "abandonment" when the prisoner is not permitted to proceed with his unexhausted claims. If he is to gain "speedy federal relief on his claims"—to which he is entitled, as the Court recognizes with its citation toBraden, ante, at 520—then the prisoner must proceed only with his exhausted claims. Thus the prisoner in such a case cannot be said to possess a "purpose to vex, harass, or delay," nor any "hope of being granted two hearings rather than one." 67 Moreover, the plurality's suggested treatment of its hypothetical prisoner flatly contradicts the Rule 9(b) standard as explained by the Advisory Committee, and a fortiori contradicts that standard as strengthened and extended by Congress. After the prisoner's first, "mixed" petition has been mandatorily dismissed without any scrutiny, after his exhausted claims have been rejected, and after he has then presented his previously unexhausted claims in a second petition, there is simply no way in which a habeas court could "find petitioner's failure to have asserted the new grounds in the prior petition to be inexcusable." On the contrary, petitioner's failure to have asserted the "new," previously unexhausted claims in the prior petition could only be found to have been required by the habeas court itself, as a condition for its consideration of the exhausted claims. If the plurality's interpretation of Rule 9(b) cannot satisfy the Advisory Committee's "inexcusable" standard, then it falls even further short of the higher, "abusive" standard eventually adopted by Congress. IV 68 I conclude that when a prisoner's original, "mixed" habeas petition is dismissed without any examination of its claims on the merits, and when the prisoner later brings a second petition based on the previously unexhausted claims that had earlier been refused a hearing, then the remedy of dismissal for "abuse of the writ" cannot be employed against that second petition, absent unusual factual circumstances truly suggesting abuse. This conclusion is to my mind inescapably compelled not only by Sanders, but also by the Advisory Committee explanation of the Rule, and by Congress' subsequent incorporation of the higher, "abusive" standard into the Rule. The plurality's conclusion, in contrast, has no support whatever from any of these sources. Nor, of course, does it have the support of a majority of the Court.* 69 Justice WHITE, concurring in part and dissenting in part. 70 I agree with most of Justice BRENNAN's opinion; but like Justice BLACKMUN, I would not require a "mixed" petition to be dismised in its entirety, with leave to resubmit the exhausted claims. The trial judge cannot rule on the unexhausted issues and should dismiss them. But he should rule on the exhausted claims unless they are intertwined with those he must dismiss or unless the habeas petitioner prefers to have his entire petition dismissed. In any event, if the judge rules on those issues that are ripe and dismisses those that are not, I would not tax the petitioner with abuse of the writ if he returns with the latter claims after seeking state relief. 71 Justice STEVENS, dissenting. 72 This case raises important questions about the authority of federal judges. In my opinion the District Judge properly exercised his statutory duty to consider the merits of the claims advanced by respondent that previously had been rejected by the Tennessee courts. The District Judge exceeded, however, what I regard as proper restraints on the scope of collateral review of state-court judgments. Ironically, instead of correcting his error, the Court today fashions a new rule of law that will merely delay the final disposition of this case and, as Justice BLACKMUN demonstrates, impose unnecessary burdens on both state and federal judges. 73 An adequate explanation of my disapproval of the Court's adventure in unnecessary lawmaking requires some reference to the facts of this case and to my conception of the proper role of the writ of habeas corpus in the administration of justice in the United States. 74 * Respondent was convicted in state court of rape and a crime against nature. The testimony of the victim was corroborated by another eyewitness who was present during the entire sadistic episode. The evidence of guilt is not merely sufficient; it is convincing. As is often the case in emotional, controverted, adversary proceedings, trial error occurred. Two of those errors a remark by the prosecutor1 and a limitation on defense counsel's cross-examination of the victim2—were recognized by the Tennessee Court of Criminal Appeals, but held to be harmless in the context of the entire case. Because the state appellate court considered and rejected these two errors as a basis for setting aside his conviction, respondent has exhausted his state remedies with respect to these two claims. 75 In his application in federal court for a writ of habeas corpus, respondent alleged that these trial errors violated his constitutional rights to confront the witnesses against him and to obtain a fair trial. In his petition, respondent also alleged that the prosecutor had impermissibly commented on his failure to testify3 and that the trial judge had improperly instructed the jury that "every witness is presumed to swear the truth."4 Because these two additional claims had not been presented to the Tennessee Court of Criminal Appeals, the Federal District Judge concluded that he could "not consider them in the constitutional framework." App. 88. He added, however, that "in assessing the atmosphere of the cause taken as a whole these items may be referred to collaterally."5 76 In considering the significance of respondent's two exhausted claims, the District Court thus evaluated them in the context of the entire trial record. That is precisely what the Tennessee Court of Criminal Appeals did in arriving at its conclusion that these claims, identified as error, were not sufficiently prejudicial to justify reversing the conviction and ordering a retrial.6 In considering whether the error in these two exhausted claims was sufficient to justify a grant of habeas corpus relief, the federal court—like the state court—had a duty to look at the context in which the error occurred to determine whether it was either aggravated or mitigated by other aspects of the proceeding.7 The state court and the federal court formed differing judgments based on that broad review. I happen to share the appraisal of the state court on the merits, but I believe that the procedure followed by the federal court was entirely correct. 77 The Court holds, however, that the District Court committed two procedural errors. "Unquestionably," according to the Court, it was wrong for the District Court to consider the portions of the trial record described in the unexhausted claims in evaluating those claims that had been exhausted. Ante, at 519. More fundamentally, according to the Court, it was wrong for the District Court even to consider the merits of the exhausted claims because the prisoner had included unexhausted claims in his pleadings. Both of the Court's holdings are unsatisfactory for the same basic reason: the Court assumes that the character of all claims alleged in habeas corpus petitions is the same. Under the Court's analysis, any unexhausted claim asserted in a habeas corpus petition—no matter how frivolous—is sufficient to command the district judge to postpone relief on a meritorious exhausted claim, no matter how obvious and outrageous the constitutional violation may be. 78 In my opinion claims of constitutional error are not fungible. There are at least four types. The one most frequently encountered is a claim that attaches a constitutional label to a set of facts that does not disclose a violation of any constitutional right. In my opinion, each of the four claims asserted in this case falls in that category. The second class includes constitutional violations that are not of sufficient import in a particular case to justify reversal even on direct appeal, when the evidence is still fresh and a fair retrial could be promptly conducted. Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705; Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284. A third category includes errors that are important enough to require reversal on direct appeal but do not reveal the kind of fundamental unfairness to the accused that will support a collateral attack on a final judgment. See, e.g., Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067.8 The fourth category includes those errors that are so fundamental that they infect the validity of the underlying judgment itself, or the integrity of the process by which that judgment was obtained. This category cannot be defined precisely; concepts of "fundamental fairness" are not frozen in time. But the kind of error that falls in this category is best illustrated by recalling the classic grounds for the issuance of a writ of habeas corpus—that the proceeding was dominated by mob violence;9 that the prosecutor knowingly made use of perjured testimony;10 or that the conviction was based on a confession extorted from the defendant by brutal methods.11 Errors of this kind justify collateral relief no matter how long a judgment may have been final12 and even though they may not have been preserved properly in the original trial.13 79 In this case, I think it is clear that neither the exhausted claims nor the unexhausted claims describe any error demonstrating that respondent's trial was fundamentally unfair. Since his lawyer found insufficient merit in the two unexhausted claims to object to the error at trial or to raise the claims on direct appeal,14 I would expect that the Tennessee courts will consider them to have been waived as a matter of state law; thereafter, under the teaching of cases such as Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594, they undoubtedly will not support federal relief. This case is thus destined to return to the Federal District Court and the Court of Appeals where, it is safe to predict, those courts will once again come to the conclusion that the writ should issue. The additional procedure that the Court requires before considering the merits will be totally unproductive. 80 If my appraisal of respondent's exhausted claims is incorrect if the trial actually was fundamentally unfair to the respondent postponing relief until another round of review in the state and federal judicial systems has been completed is truly outrageous. The unnecessary delay will make it more difficult for the prosecutor to obtain a conviction on retrial if respondent is in fact guilty; if he is innocent, requiring him to languish in jail because he made a pleading error is callous indeed. 81 There are some situations in which a district judge should refuse to entertain a mixed petition until all of the prisoner's claims have been exhausted. If the unexhausted claim appears to involve error of the most serious kind and if it is reasonably clear that the exhausted claims do not, addressing the merits of the exhausted claims will merely delay the ultimate disposition of the case. Or if an evidentiary hearing is necessary to decide the merits of both the exhausted and unexhausted claims, a procedure that enables all fact questions to be resolved in the same hearing should be followed. I therefore would allow district judges to exercise discretion to determine whether the presence of an unexhausted claim in a habeas corpus application makes it inappropriate to consider the merits of a properly pleaded exhausted claim. The inflexible, mechanical rule the Court adopts today arbitrarily denies district judges the kind of authority they need to administer their calendars effectively.15 II 82 In recent years federal judges at times have lost sight of the true office of the great writ of habeas corpus. It is quite unlike the common-law writ of error that enabled a higher court to correct errors committed by a nisi prius tribunal in the trial of civil or criminal cases by ordering further proceedings whenever trial error was detected. The writ of habeas corpus is a fundamental guarantee of liberty.16 83 The fact that federal judges have at times construed their power to issue writs of habeas corpus as though it were tantamount to the authority of an appellate court considering a direct appeal from a trial court judgment has had two unfortunate consequences. First, it has encouraged prisoners to file an ever-increasing volume of federal applications that often amount to little more than a request for further review of asserted grounds for reversal that already have been adequately considered and rejected on direct review. Second, it has led this Court into the business of creating special procedural rules for dealing with this flood of litigation. The doctrine of nonretroactivity, the emerging "cause and prejudice" doctrine, and today's "total exhaustion" rule are examples of judicial lawmaking that might well have been avoided by confining the availability of habeas corpus relief to cases that truly involve fundamental unfairness. 84 When that high standard is met, there should be no question about the retroactivity of the constitutional rule being enforced. Nor do I believe there is any need to fashion definitions of "cause" and "prejudice" to determine whether an error that was not preserved at trial or on direct appeal is subject to review in a collateral federal proceeding.17 The availability of habeas corpus relief should depend primarily on the character of the alleged constitutional violation and not on the procedural history underlying the claim.18 85 The "total exhaustion" rule the Court crafts today demeans the high office of the great writ. Perhaps a rule of this kind would be an appropriate response to a flood of litigation requesting review of minor disputes. An assumption that most of these petitions are groundless might be thought to justify technical pleading requirements that would provide a mechanism for reducing the sheer number of cases in which the merits must be considered. But the Court's experience has taught us not only that most of these petitions lack merit, but also that there are cases in which serious injustice must be corrected by the issuance of the writ.19 In such cases, the statutory requirement that adequate state remedies be exhausted must, of course, be honored. When a person's liberty is at stake, however, there surely is no justification for the creation of needless procedural hurdles.20 86 Procedural regularity is a matter of fundamental importance in the administration of justice. But procedural niceties that merely complicate and delay the resolution of disputes are another matter. In my opinion the federal habeas corpus statute should be construed to protect the former and, whenever possible, to avoid the latter. 87 I respectfully dissent. 1 The court sentenced the respondent to consecutive terms of 120 years on the rape charge and from 5 to 15 years on the crime against nature charge. 2 The Tennessee Criminal Court of Appeals had ruled specifically on grounds one and two, holding that although the trial court erred in restricting cross-examination of the victim and the prosecuting attorney improperly alluded to the respondent's violent nature, the respondent was not prejudiced by these errors. Lundy v. State, 521 S.W.2d 591, 595-596 (1974). 3 In particular, the District Court found that the prosecutor improperly: (1) misrepresented that the defense attorney was guilty of illegal and unethical misconduct in interviewing the victim before trial; (2) "testified" that the victim was telling the truth on the stand; (3) stated his view of the proper method for the defense attorney to interview the victim; (4) misrepresented the law regarding interviewing government witnesses; (5) misrepresented that the victim had a right for both private counsel and the prosecutor to be present when interviewed by the defense counsel; (6) represented that because an attorney was not present, the defense counsel's conduct was inexcusable; (7) represented that he could validly file a grievance with the Bar Association on the basis of the defense counsel's conduct; (8) objected to defense counsel's cross-examination of the victim; (9) commented that the defendant had a violent nature; (10) gave his personal evaluation of the State's proof. The petitioner concedes that the state appellate court considered instances 1, 3, 4, 5, and 9, but states without contradiction that the respondent did not object to the prosecutor's statement that the victim was telling the truth (# 2) or to any of the several instances where the prosecutor, in summation, gave his opinion on the weight of the evidence (# 10). The petitioner also notes that the conduct identified in # 6 and # 7 did not occur in front of the jury, and that the conduct in # 8, which was only an objection to cross-examination, can hardly be labeled as misconduct. 4 The court granted the writ and ordered the respondent discharged from custody unless within 90 days the State initiated steps to bring about a new trial. 5 The Fifth and Ninth Circuits have adopted a "total exhaustion" rule. See Galtieri v. Wainwright, 582 F.2d 348, 355-360 (CA5 1978) (en banc), and Gonzales v. Stone, 546 F.2d 807, 808-810 (CA9 1976). A majority of the Courts of Appeals, however, have permitted the District Courts to review the exhausted claims in a mixed petition containing both exhausted and unexhausted claims. See, e.g., Katz v. King, 627 F.2d 568, 574 (CA1 1980); Cameron v. Fastoff, 543 F.2d 971, 976 (CA2 1976); United States ex rel. Trantino v. Hatrack, 563 F.2d 86, 91-95 (CA3 1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1499, 55 L.Ed.2d 524 (1978); Hewett v. North Carolina, 415 F.2d 1316, 1320 (CA4 1969); Meeks v. Jago, 548 F.2d 134, 137 (CA6 1976), cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977); Brown v. Wisconsin State Dept. of Public Welfare, 457 F.2d 257, 259 (CA7), cert. denied, 409 U.S. 862, 93 S.Ct. 150, 34 L.Ed.2d 108 (1972); Tyler v. Swenson, 483 F.2d 611, 614 (CA8 1973); Whiteley v. Meacham, 416 F.2d 36, 39 (CA10 1969), rev'd on other grounds, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). In Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), this Court reviewed the merits of an exhausted claim after expressly acknowledging that the prisoner had not exhausted his state remedies for all of the claims presented in his habeas petition. Gooding does not control the present case, however, since the question of total exhaustion was not before the Court. Two years later, in Francisco v. Gathright, 419 U.S. 59, 63-64, 95 S.Ct. 257, 259-260, 42 L.Ed.2d 226 (1974) (per curiam), the Court expressly reserved the question of whether § 2254 requires total exhaustion of claims. 6 Rule 9(b) provides that "[a] second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ." 7 The Court also made clear, however, that the exhaustion doctrine does not bar relief where the state remedies are inadequate or fail to "afford a full and fair adjudication of the federal contentions raised." 321 U.S., at 118, 64 S.Ct., at 450. 8 The Reviser's Notes in the appendix of the House Report state: "This new section [§ 2254] is declaratory of existing law as affirmed by the Supreme Court. (See Ex parte Hawk, 1944, [64 S.Ct. 448] 321 U.S. 114 [88 L.Ed. 572] )." H.R.Rep.No. 308, 80th Cong., 1st Sess., A180 (1947); Historical and Revision Notes following 28 U.S.C. § 2254. See also Darr v. Burford, 339 U.S. 200, 210, 70 S.Ct. 587, 593, 94 L.Ed. 761 (1950) ("In § 2254 of the 1948 recodification of the Judicial Code, Congress gave legislative recognition to the Hawk rule for the exhaustion of remedies in the state courts and this Court"); Brown v. Allen, 344 U.S. 443, 447-450, 73 S.Ct. 397, 402-403, 97 L.Ed. 469 (1953); Fay v. Noia, 372 U.S. 391, 434, 83 S.Ct. 822, 846, 9 L.Ed.2d 837 (1963). 9 Section 2254 in part provides: "(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. "(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." 10 Section 2254 was one small part of a comprehensive revision of the Judicial Code. The original version of § 2254, as passed by the House, provided that "[a]n application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court or authority of a State officer shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is no adequate remedy available in such courts or that such courts have denied him a fair adjudication of the legality of his detention under the Constitution and laws of the United States." H.R. 3214, 80th Cong., 1st Sess. (1947). The Senate amended the House bill, changing the House version of § 2254 to its present form. The Senate Report accompanying the bill states that one purpose of the amendment was "to substitute detailed and specific language for the phrase 'no adequate remedy available.' That phrase is not sufficiently specific and precise, and its meaning should, therefore, be spelled out in more detail in the section as is done by the amendment." S.Rep.No. 1559, 80th Cong., 2d Sess., 10 (1948). The House accepted the Senate version of the Judicial Code without further amendment. In 1966, Congress amended § 2254 to add subsection (a) and redesignate the existing paragraphs as subsections (b) and (c). See Pub.L. 89-711, § 2(c), 80 Stat. 1105. 11 See Note, Habeas Petitions with Exhausted and Unexhausted Claims: Speedy Release, Comity and Judicial Efficiency, 57 B.U.L.Rev. 864, 867, n. 30 (1977) (suggesting that before 1948 habeas petitions did not contain multiple claims). 12 See also Developments, Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1094 (1970) (cited favorably in Braden ). 13 In Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999 (1924), the petitioner brought two habeas corpus petitions to obtain release from the custody of a deportation order. The ground for relief contained in the second petition was also contained in the first petition, but had not been pursued in the first habeas proceeding. The Court held that because the petitioner "had full opportunity to offer proof" in the first hearing, the lower court should not consider the second petition. Id., at 241, 44 S.Ct. at 525. The present case, of course, is not controlled by Wong Doo because the respondent could not have litigated his unexhausted claims in federal court. Nonetheless, the case provides some guidance for the situation in which a prisoner deliberately decides not to exhaust his claims in state court before filing a habeas corpus petition. 14 Because of our disposition of this case, we do not reach the petitioner's claims that the grounds offered by the respondent do not merit habeas relief. 1 In Brown v. Allen, 344 U.S. 443, 447, 73 S.Ct. 397, 402, 97 L.Ed. 469 (1953), the Court made clear that the exhaustion doctrine does not foreclose federal habeas relief whenever a state remedy is available; once a prisoner has presented his claim to the highest state court on direct appeal, he need not seek collateral relief from the State. Additionally, in Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), the Court permitted consideration of a § 2254 petition seeking to force the State to afford the prisoner a speedy trial. Although the defendant had not yet been convicted, and therefore obviously had not utilized all available state procedures, and although he could have raised his Sixth Amendment claim as a defense at trial, the Court found the interests underlying the exhaustion doctrine satisfied because the petitioner had presented his existing constitutional claim to the state courts and because he was not attempting to abort a state proceeding or disrupt the State's judicial process. See id., at 491, 93 S.Ct. at 1127. Finally, in Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967), the Court held that an intervening change in the relevant state law, which had occurred subsequent to the prisoner's exhaustion of state remedies and which suggested that the state courts would look favorably on the request for relief, did not necessitate a return to state court. 2 The Court fails to mention two related state interests relied upon by the petitioner warden—ensuring finality of convictions and avoiding the mooting of pending state proceedings. The finality of a conviction in no way depends, however, on a federal court's treatment of a mixed habeas petition. If a State is concerned with finality, it may adopt a rule directing defendants to present all their claims at one time; a prisoner's failure to adhere to that procedural requirement, absent cause and prejudice, would bar subsequent federal habeas relief on additional grounds. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Murch v. Mottram, 409 U.S. 41, 93 S.Ct. 71, 34 L.Ed.2d 194 (1972). As long as the State permits a prisoner to continue challenging his conviction on alternative grounds, a federal court's dismissal of a mixed habeas petition will provide no particular incentive for consolidation of all potential claims in a single state proceeding. A pending state proceeding involving claims not included in the prisoner's federal habeas petition will be mooted only if the federal court grants the applicant relief. Even in those cases, though, the state courts will be saved the trouble of undertaking the useless exercise of ruling on unexhausted claims that are unnecessary to the disposition of the case. 3 The district court is free, of course, to order expansion of the record. See 28 U.S.C. § 2254 Rule 7. 4 A related federal interest mentioned by the Court is avoiding piecemeal litigation and encouraging a prisoner to bring all challenges to his state-court conviction in one § 2254 proceeding. As discussed in Part II, infra, however, the Court's approach cannot promote that interest because Congress has expressly permitted successive habeas petitions unless the subsequent petitions constitute "an abuse of the writ." 28 U.S.C. § 2254 Rule 9(b). 5 In United States ex rel. Irving v. Casscles, 448 F.2d 741, 742 (CA2 1971), cert. denied, 410 U.S. 925, 93 S.Ct. 1376, 35 L.Ed.2d 586 (1973), and United States ex rel. DeFlumer v. Mancusi, 380 F.2d 1018, 1019 (CA2 1967), for example, mixed habeas petitions were dismissed because the exhausted and unexhausted claims were interrelated. In each case, the prisoner was unable to obtain a federal-court judgment on the merits of his exhausted claims for years. See United States ex rel. Irving v. Henderson, 371 F.Supp. 1266 (SDNY 1974); United States ex rel. DeFlumer v. Mancusi, 443 F.2d 940 (CA2), cert. denied, 404 U.S. 914, 92 S.Ct. 241, 30 L.Ed.2d 189 (1971). 6 The petitioner warden insists, however, that improved judicial efficiency will benefit those prisoners with meritorious claims because their petitions will not be lost in the flood of frivolous § 2254 petitions. Even if the Court's approach were to contribute to the efficient administration of justice, the contours of the exhaustion doctrine have no relationship to the merits of a habeas petition: a prisoner with one substantial exhausted claim will be forced to return to state court to litigate his remaining challenges, whereas a petitioner with frivolous, but exhausted, claims will receive, it is to be hoped, a prompt ruling on the merits from the federal court. See STEVENS, J., dissenting, post, at 545. 7 Even the Fifth and Ninth Circuits, which require dismissal of mixed habeas petitions in the typical case, do not follow the extreme position the Court takes today. The Ninth Circuit permits district courts to consider the exhausted grounds in a mixed petition if the prisoner has a reasonable explanation for failing to exhaust the other claims or if the state courts have delayed in ruling on those claims. See Gonzales v. Stone, 546 F.2d 807, 810 (1976). The Fifth Circuit will review the merits of exhausted claims contained in a mixed petition if the district court has considered those claims. See Galtieri v. Wainwright, 582 F.2d 348, 361-362 (1978) (en banc). 8 This Court implies approval of the District Court's finding of interrelatedness, see ante, at 519, but I am not convinced that the District Court's conclusion was compelled. Conceivably, habeas relief could be justified only on the basis of a determination that the cumulative impact of the four alleged errors so infected the trial as to violate respondent's due process rights. But Lundy's four claims, on their face, are distinct in terms of the factual allegations and legal conclusions on which they depend. * Justice WHITE rejects the plurality's conclusion in Part III-C, ante, see this page, as does Justice BLACKMUN, see ante, 529. Justice STEVENS does not reach this issue. 1 At trial, the prosecutor questioned the eyewitness concerning "difficulties" that her sister had encountered while dating the respondent. In response to an objection to the materiality of the inquiry, the prosecutor explained, in the presence of the jury, that "I would think the defendant's violent nature would be material to this case in the light of what the victim has testified to." App. 17. The trial court excused the jury to determine the admissibility of the evidence; it ruled that the collateral inquiry was "too far removed to be material and relevant." Id., at 22. After the jury had returned, the court instructed it to disregard the prosecutor's remarks. Respondent objected to the prosecutor's statement on direct appeal. After reciting the challenged events, the Tennessee Court of Criminal Appeals recognized that "State's counsel made some remarks in the presence of the jury that were overly zealous in support of this incompetent line of proof, and in a different case could constitute prejudicial error." Lundy v. State, 521 S.W.2d 591, 595 (Tenn.Crim.App.1974). The court ruled, however, that "in the context of the undisputed facts of this case we hold any error to have been harmless beyond a reasonable doubt." Ibid. 2 Defense counsel cross-examined the victim concerning her prior sexual activity. When the victim responded that she could not remember certain activity, counsel attempted to question her concerning statements that she apparently had made in an earlier interview with defense counsel. The prosecutor objected to this questioning on the ground that, during the interview, defense counsel had only disclosed that he was a lawyer involved in the case, and had not told the victim that he was counsel for the defendant. The trial court sustained the objection. The court permitted defense counsel to continue to question the victim concerning her prior sexual activity, but refused to permit him to refer to his earlier conversation with the victim. App. 13. On appeal, respondent objected to the trial court's ruling, and also claimed that the prosecutor had prejudiced him by suggesting, before the jury, that defense counsel had acted unethically in not specifically identifying his involvement in the case. The state appellate court rejected respondent's claims, stating: "We note that the trial judge permitted cross-examination upon the same subject matter, but simply ruled out predicating the cross-examination questions upon the prior questions and answers. From the tender of proof in the record we do not believe that defendant was prejudiced by what we deem to have been too restrictive a ruling. Defense counsel was under no positive duty to affirmatively identify his role in the upcoming case before questioning a witness. He apparently made no misrepresentation, and was apparently seeking the truth. State's counsel was unduly critical of defense counsel in indicating before the jury that State's counsel should have been present at the interview, etc., but we hold this error to be harmless in the context of this case." 521 S.W.2d, at 596. 3 In his closing argument, the prosecutor stated: "The only story we've heard about what happened from about 8:15 of the night of March 16th until about four o'clock in the morning of March 17th came from the State's witnesses." App. 27. 4 The judge instructed the jury: "The jurors are the exclusive judges of the facts and the credibility of the witnesses. You are judges of the law under the direction of the court. If there are conflicts in the evidence, you must reconcile them, if you can, without hastily or rashly concluding that any witness has sworn falsely, for every witness is presumed to swear the truth." Id., at 31. 5 The court stated in full: "Since grounds three and four have not been presented to the state court there has been no exhaustion of remedies as to these two. Thus this court will not consider them in the constitutional framework. However, in assessing the atmosphere of the cause taken as a whole these items may be referred to collaterally." Id., at 88. 6 The appellate court found the prosecutor's improper remark to have been harmless "in the context of the undisputed facts of this case"; the limitation of cross-examination harmless "in the context of this case." See nn. 1, 2, supra. 7 "Each case must be scrutinized on its particular facts to determine whether a trial error is harmless error or prejudicial error when viewed in the light of the trial record as a whole, not whether each isolated incident viewed by itself constitutes reversible error." United States v. Grunberger, 431 F.2d 1062, 1069 (CA2 1970). Cf. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 240, 60 S.Ct. 811, 852, 84 L.Ed. 1129 ("Of course, appeals to passion and prejudice may so poison the minds of jurors even in a strong case that an accused may be deprived of a fair trial. But each case necessarily turns on its own facts. And where, as here, the record convinces us that these statements were minor aberrations in a prolonged trial and not cumulative evidence of a proceeding dominated by passion and prejudice, reversal would not promote the ends of justice"). 8 In my opinion a claim generally belongs in this category if the purpose and significance of the constitutional rule is such that the Court enforces it prospectively but not retroactively, cf. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, or if the probable significance of the claim is belied by the fact that otherwise competent defense counsel did not raise a timely objection, cf. Estelle v. Williams, 425 U.S. 501, 508, n. 3, 96 S.Ct. 1691, 1695, n. 3, 48 L.Ed.2d 126; Wainwright v. Sykes, 433 U.S. 72, 95-97, 97 S.Ct. 2497, 2510-2511, 53 L.Ed.2d 594 (STEVENS, J., concurring). I recognize the apparent incongruity in suggesting that there is a class of constitutional error—not constitutionally harmless that does not render a criminal proceeding fundamentally unfair. It may be argued, with considerable force, that a rule of procedure that is not necessary to ensure fundamental fairness is not worthy of constitutional status. The fact that such a category of constitutional error exists, however, is demonstrated by the jurisprudence of this Court concerning the retroactive application of newly recognized constitutional rights. See, e.g., Linkletter v. Walker, supra, (exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, not to be applied retroactively); Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (rule of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, forbidding adverse comment on the defendant's failure to testify); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (guidelines for custodial interrogation established in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (rules requiring presence of counsel at pretrial identification procedures); DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (right to trial by jury in serious criminal cases and serious criminal contempts); Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (rule of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, requiring objective evidence on the record to justify greater sentence imposed after successful appeal). In ruling that a constitutional principle is not to be applied retroactively, the Court implicitly suggests that the right is not necessary to ensure the integrity of the underlying judgment; the Court certainly would not allow claims of such magnitude to remain unremedied. It is possible that each of these decisions involves a general constitutional principle that—although not necessary to ensure fundamental fairness at trial—is typically vindicated through trial remedies. See, e.g., Linkletter v. Walker, supra, 381 U.S., at 639, 85 S.Ct., at 1743; Tehan v. United States ex rel. Shott, supra, 382 U.S., at 415, 86 S.Ct., at 464; but see Stovall v. Denno, supra, 388 U.S., at 298, 87 S.Ct., at 1970; DeStefano v. Woods, supra, 392 U.S., at 633, 88 S.Ct., at 2095. Whatever the correct explanation of these decisions may be, they demonstrate that the Court's constitutional jurisprudence has expanded beyond the concept of ensuring fundamental fairness to the accused. My point here is simply that this expansion need not, and should not, be applied to collateral attacks on final judgments. 9 Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543. 10 Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791. 11 See Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (direct appeal). 12 See, e.g., DeMeerleer v. Michigan, 329 U.S. 663, 67 S.Ct. 596, 91 L.Ed. 584; Marino v. Ragen, 332 U.S. 561, 68 S.Ct. 240, 92 L.Ed. 170. 13 See Wainwright v. Sykes, supra, at 95-96, n. 3, 97 S.Ct., at 2511, n. 3 (STEVENS, J., concurring). Justice Black noted in his opinion for the Court in Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 that "there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error." In support of this statement he cited Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (coerced confession); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (right to counsel at trial); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (impartial judge). 14 See App. 27, 35-38, 75, 88. 15 I do not believe that the Court's "total exhaustion" requirement is simply a harmless rule of procedure whose prospective application will do nothing more than require district judges to instruct state prisoners to redraft their pleadings with black magic markers. If that is the full import of the decision today, the Court disparages federal judges; the Court implies that a federal judge will not obey the statutory command to grant relief on only exhausted claims if an unexhausted claim lurks somewhere in the prisoner's pleadings. More importantly, the unnecessary delay that the Court causes in the disposition of this case will not be limited to the instant proceeding; a similar outcome will follow every time an appellate court disagrees with a district court's judgment that a petition contains only exhausted claims. Given the ambiguity of many habeas corpus applications filed by pro se applicants, such differing appraisals should not be uncommon. 16 "The uniqueness of habeas corpus in the procedural armory of our law cannot be too often emphasized. It differs from all other remedies in that it is available to bring into question the legality of a person's restraint and to require justification for such detention. Of course this does not mean that prison doors may readily be opened. It does mean that explanation may be exacted why they should remain closed. It is not the boasting of empty rhetoric that has treated the writ of habeas corpus as the basic safeguard of freedom in the Anglo-American world. 'The great writ of habeas corpus has been for centuries esteemed the best and only sufficient defence of personal freedom.' Mr. Chief Justice Chase, writing for the Court, in Ex parte Yerger, 8 Wall. 85, 95, 19 L.Ed. 332. Its history and function in our legal system and the unavailability of the writ in totalitarian societies are naturally enough regarded as one of the decisively differentiating factors between our democracy and totalitarian governments." Brown v. Allen, 344 U.S. 443, 512, 73 S.Ct. 397, 448, 97 L.Ed. 469 (opinion of Frankfurter, J.). 17 The failure of otherwise competent defense counsel to raise an objection at trial is often a reliable indication that the defendant was not denied fundamental fairness in the state-court proceedings. The person best qualified to recognize such error is normally a defendant's own lawyer. Thus, in searching for fundamental unfairness in a trial record, I attach great importance to the character of the objection, if any, asserted by the defendant's counsel. But if such error is manifest, I would not wrestle with terms such as "cause" and "prejudice" to determine whether habeas corpus relief should be granted. Thus, in Wainwright v. Sykes, 433 U.S., at 94, 97 S.Ct., at 2510, I wrote separately because a straightforward analysis of the record revealed the lack of merit in the prisoner's claim. Had the record disclosed an error sufficiently serious to justify habeas corpus relief, I would not have joined a holding that an error of that character had been waived by a procedural default. As I pointed out in Wainwright, supra, at 95, 97 S.Ct., at 2510, even an express waiver by the defendant may be excused if the constitutional issue is sufficiently grave. That actually was the case in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837. There the Court held that habeas corpus relief was available notwithstanding the client's participation in the waiver decision, and notwithstanding the fact that the decision was made on a tactical basis. See 433 U.S., at 95, n. 3, 97 S.Ct., at 2511, n. 3. 18 It may be argued that limiting habeas corpus relief to claims involving the fundamental fairness of the underlying proceeding is no less "lawmaking" than engrafting a rule that a federal court may not entertain a habeas corpus application containing both exhausted and unexhausted claims. See Stone v. Powell, 428 U.S. 465, 522, 529, 96 S.Ct. 3037, 3065, 3069, 49 L.Ed.2d 1067 (BRENNAN, J., dissenting). It is interesting to note, however, that the Court unanimously has held that an error of law does not provide a basis for collateral attack on a federal judgment under 28 U.S.C. § 2255 unless the error constituted " 'a fundamental defect which inherently results in a complete miscarriage of justice,' " United States v. Timmreck, 441 U.S. 780, 783, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417); see also United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805, even though the statute authorizes a federal prisoner to petition for relief whenever he is "in custody under sentence . . . imposed in violation of the Constitution or laws of the United States. . ." 28 U.S.C. § 2255 (emphasis added). See Davis v. United States, 417 U.S. 333, 343-344, 94 S.Ct. 2298, 2303-2304, 41 L.Ed.2d 109. Although the two situations are not identical, I believe that the reasons that persuaded the Court to limit errors of law cognizable under 28 U.S.C. § 2255 also apply to constitutional errors under 28 U.S.C. § 2254. Section 2254 was enacted in 1948 as part of the revision and recodification of Title 28 of the United States Code. The Reviser's Notes concerning § 2254 provide simply that "[t]his new section is declaratory of existing law as affirmed by the Supreme Court. (See Ex parte Hawk, 1944, [64 S.Ct. 448] 321 U.S. 114 [88 L.Ed. 572])." H.R.Rep.No.308, 80th Cong., 1st Sess. A180 (1947). In 1948, constitutional rules of procedure were relatively few, those that did exist generally were not applicable to the States, and the scope of habeas corpus relief was narrow. As late as the decision in Palko v. Connecticut, 302 U.S. 319, 328, 58 S.Ct. 149, 153, 82 L.Ed. 288, constitutional claims applicable to the States were limited to those hardships "so acute and shocking that our polity will not endure it"; to those " 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.' " Ibid. (quoting Hebert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270). In Schechtman v. Foster, 172 F.2d 339, 341 (CA2 1949), cert. denied, 339 U.S. 924, 70 S.Ct. 613, 94 L.Ed. 1346, Judge Learned Hand wrote for the court, in affirming a denial of a habeas corpus petition alleging intentional use of perjured testimony, that "[i]f the [state] judge who denied that [claim] did in fact consider the evidence as a whole, and if he decided that it was not, even prima facie, sufficient to make out a case of deliberate presentation by the prosecution of perjured testimony, [petitioner] was accorded the full measure of his constitutional rights. . . . [T]he District Court could not properly have issued the writ, no matter how erroneous the judge had thought the state judge's conclusion that the evidence did not make out a prima facie case of the deliberate use of perjured testimony." This Court has long since rejected these restrictive notions of the constitutional protections that are available to state criminal defendants. Nevertheless, the point remains that the law today is very different from what it was when the current habeas corpus statute was enacted in 1948. That statute was amended in 1966, but the amendments merely added to, and did not modify, the existing statutory language. Respected scholars may argue forcefully to the contrary, but in my opinion a limitation of habeas corpus relief to instances of fundamental unfairness is consistent with the intent of the Congress that enacted § 2254 in 1948. 19 "The meritorious claims are few, but our procedures must ensure that those few claims are not stifled by undiscriminating generalities. The complexities of our federalism and the workings of a scheme of government involving the interplay of two governments, one of which is subject to limitations enforceable by the other, are not to be escaped by simple, rigid rules which, by avoiding some abuses, generate others." Brown v. Allen, 344 U.S., at 498, 73 S.Ct., at 441 (opinion of Frankfurter, J.). 20 "[W]e have consistently rejected interpretations of the habeas corpus statute that would suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements." Hensley v. Municipal Court, 411 U.S. 345, 350, 93 S.Ct. 1571, 1574, 36 L.Ed.2d 294. Cf. Marino v. Ragen, 332 U.S., at 563-570, 68 S.Ct., at 241-245 (Rutledge, J., concurring).

01

455 U.S. 551 102 S.Ct. 1220 71 L.Ed.2d 409 MARINE BANK, Petitionerv.Samuel WEAVER, et ux. No. 80-1562. Argued Jan. 11, 1982. Decided March 8, 1982. Syllabus After respondents purchased a $50,000 certificate of deposit, with a 6-year maturity, from petitioner federally regulated bank, they pledged it to petitioner to guarantee a $65,000 loan made to a company that owed petitioner $33,000 for prior loans and was also overdrawn on its checking account. In consideration for guaranteeing the new loan, the company's owners entered into an agreement with respondents whereby respondents were to receive a share of the company's profits and other compensation. The new loan, rather than being used as working capital by the company as petitioner's officers allegedly told respondents it would, was applied to pay the company's overdue obligations to petitioner. Subsequently, the company became bankrupt, and petitioner disclosed its intention to claim the pledged certificate of deposit. Respondents then brought suit in Federal District Court, claiming that petitioner violated, inter alia, the antifraud provisions of § 10(b) of the Securities Exchange Act of 1934 (Act) by soliciting the loan guarantee while knowing, but not disclosing, the borrowing company's financial plight or petitioner's plans to repay itself from the guaranteed loan. The District Court granted summary judgment in petitioner's favor, holding that if a wrong occurred, it did not occur "in connection with the purchase or sale of any security" as required for liability under § 10(b). The Court of Appeals reversed, holding that it could reasonably be found that either the certificate of deposit or the agreement between respondents and the company's owners was a security. Held: Neither the certificate of deposit nor the agreement in question is a security within the meaning of § 10(b). Pp. 555-561. (a) While the definition of "security" in the Act is quite broad, Congress, in enacting the securities laws, did not intend to provide a broad federal remedy for all fraud. Pp. 555-556. (b) A certificate of deposit is not the functional equivalent of the withdrawable capital shares of a savings and loan association held to be securities in Tcherepnin v. Knight, 389 U.S. 332, 88 S.Ct. 548, 19 L.Ed.2d 564, nor is it similar to any other long-term debt obligation commonly found to be a security. The purchaser of a certificate of deposit is virtually guaranteed payment in full, whereas the holder of an ordinary long-term debt obligation assumes the risk of the borrower's insolvency. Cf. Teamsters v. Daniel, 439 U.S. 551, 99 S.Ct. 790, 58 L.Ed.2d 808. Pp. 556-559. (c) The agreement in question is not the type of instrument that comes to mind when the term "security" is used and does not fall within "the ordinary concept of a security." SEC v. W. J. Howey, Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244, and SEC v. C. M. Joiner Leasing Corp., 320 U.S. 344, 64 S.Ct. 120, 88 L.Ed. 88, distinguished. The provision of the agreement giving respondents a share of the company's profits is not in itself sufficient to make the agreement a security. Pp. 559-560. 637 F.2d 157, reversed and remanded. Daniel L. R. Miller, Erie, Pa., for petitioner. Andrew J. Conner, Erie, Pa., for respondents. Chief Justice BURGER delivered the opinion of the Court. 1 We granted certiorari to decide whether two instruments, a conventional certificate of deposit and a business agreement between two families, could be considered securities under the antifraud provisions of the federal securities laws. 2 * Respondents, Sam and Alice Weaver, purchased a $50,000 certificate of deposit from petitioner Marine Bank on February 28, 1978. The certificate of deposit has a 6-year maturity, and it is insured by the Federal Deposit Insurance Corporation.1 The Weavers subsequently pledged the certificate of deposit to Marine Bank on March 17, 1978, to guarantee a $65,000 loan made by the bank to Columbus Packing Co. Columbus was a wholesale slaughterhouse and retail meat market which owed the bank $33,000 at that time for prior loans and was also substantially overdrawn on its checking account with the bank. 3 In consideration for guaranteeing the bank's new loan, Columbus' owners, Raymond and Barbara Piccirillo, entered into an agreement with the Weavers. Under the terms of the agreement, the Weavers were to receive 50% of Columbus' net profits and $100 per month as long as they guaranteed the loan. It was also agreed that the Weavers could use Columbus' barn and pasture at the discretion of the Piccirillos, and that they had the right to veto future borrowing by Columbus. 4 The Weavers allege that bank officers told them Columbus would use the $65,000 loan as working capital but instead it was immediately applied to pay Columbus' overdue obligations. The bank kept approximately $42,800 to satisfy its prior loans and Columbus' overdrawn checking account. All but $3,800 of the remainder was disbursed to pay overdue taxes and to satisfy other creditors; the bank then refused to permit Columbus to overdraw its checking account. Columbus became bankrupt four months later. Although the bank had not yet resorted to the Weavers' certificate of deposit at the time this litigation commenced, it acknowledged that its other security was inadequate and that it intended to claim the pledged certificate of deposit. 5 These allegations were asserted in a complaint filed in the Federal District Court for the Western District of Pennsylvania in support of a claim that the bank violated § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U.S.C. § 78j(b). The Weavers also pleaded pendent claims for violations of the Pennsylvania Securities Act and for common-law fraud by the bank. The Weavers alleged that bank officers actively solicited them to guarantee the $65,000 loan to Columbus while knowing, but not disclosing, Columbus' financial plight or the bank's plans to repay itself from the new loan guaranteed by the Weavers' pledged certificate of deposit. Had they known of Columbus' precarious financial condition and the bank's plans, the Weavers allege they would not have guaranteed the loan and pledged the certificate of deposit. The District Court granted summary judgment in favor of the bank. It concluded that if a wrong occurred it did not take place "in connection with the purchase or sale of any security," as required for liability under § 10(b). The District Court declined to exercise pendent jurisdiction over the state-law claims. 6 The Court of Appeals for the Third Circuit reversed. 637 F.2d 157 (1980). A divided court held that a finder of fact could reasonably conclude that either the certificate of deposit or the agreement between the Weavers and the Piccirillos was a security.2 It therefore remanded for further consideration of the claim based on the federal securities laws. The Court of Appeals also reversed the District Court's dismissal of the pendent state-law claims. 7 We granted certiorari, 452 U.S. 904, 101 S.Ct. 3029, 69 L.Ed.2d 404 (1981), and we reverse. We hold that neither the certificate of deposit nor the agreement between the Weavers and the Piccirillos is a security under the antifraud provisions of the federal securities laws. We remand the case to the Court of Appeals to determine whether the pendent state claims should now be entertained. II 8 The definition of "security" in the Securities Exchange Act of 19343 is quite broad. The Act was adopted to restore investors' confidence in the financial markets,4 and the term "security" was meant to include "the many types of instruments that in our commercial world fall within the ordinary concept of a security." H.R.Rep.No.85, 73d Cong., 1st Sess., 11 (1933); quoted in United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 847-848, 95 S.Ct. 2051, 2058, 44 L.Ed.2d 621 (1975). The statutory definition excludes only currency and notes with a maturity of less than nine months. It includes ordinary stocks and bonds, along with the "countless and variable schemes devised by those who seek the use of the money of others on the promise of profits . . . ." SEC v. W. J. Howey, Co., 328 U.S. 293, 299, 66 S.Ct. 1100, 1103, 90 L.Ed. 1244 (1946). Thus, the coverage of the antifraud provisions of the securities laws is not limited to instruments traded at securities exchanges and over-the-counter markets, but extends to uncommon and irregular instruments. Superintendent of Insurance of New York v. Bankers Life & Casualty Co., 404 U.S. 6, 10, 92 S.Ct. 165, 167, 30 L.Ed.2d 128 (1971); SEC v. C. M. Joiner Leasing Corp., 320 U.S. 344, 351, 64 S.Ct. 120, 123, 88 L.Ed. 88 (1943). We have repeatedly held that the test " 'is what character the instrument is given in commerce by the terms of the offer, the plan of distribution, and the economic inducements held out to the prospect.' " SEC v. United Benefit Life Ins. Co., 387 U.S. 202, 211, 87 S.Ct. 1557, 1562, 18 L.Ed.2d 673 (1967), quoting SEC v. C. M. Joiner Leasing Corp., supra, at 352-353, 64 S.Ct., at 124. 9 The broad statutory definition is preceded, however, by the statement that the terms mentioned are not to be considered securities if "the context otherwise requires . . . ." Moreover, we are satisfied that Congress, in enacting the securities laws, did not intend to provide a broad federal remedy for all fraud. Great Western Bank & Trust v. Kotz, 532 F.2d 1252, 1253 (CA9 1976); Bellah v. First National Bank, 495 F.2d 1109, 1114 (CA5 1974). III 10 The Court of Appeals concluded that the certificate of deposit purchased by the Weavers might be a security. Examining the statutory definition, n. 3,supra, the court correctly noted that the certificate of deposit is not expressly excluded from the definition since it is not currency and it has a maturity exceeding nine months.5 It concluded, however, that the certificate of deposit was the functional equivalent of the withdrawable capital shares of a savings and loan association held to be securities inTcherepnin v. Knight, 389 U.S. 332, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967). The court also reasoned that, from an investor's standpoint, a certificate of deposit is no different from any other long-term debt obligation.6 Unless distinguishing features were found on remand, the court concluded that the certificate of deposit should be held to be a security. 11 Tcherepnin is not controlling. The withdrawable capital shares found there to be securities did not pay a fixed rate of interest; instead, purchasers received dividends based on the association's profits. Purchasers also received voting rights. In short, the withdrawable capital shares in Tcherepnin were much more like ordinary shares of stock and "the ordinary concept of a security," supra, at 556, than a certificate of deposit. 12 The Court of Appeals also concluded that a certificate of deposit is similar to any other long-term debt obligation commonly found to be a security. In our view, however, there is an important difference between a bank certificate of deposit and other long-term debt obligations. This certificate of deposit was issued by a federally regulated bank which is subject to the comprehensive set of regulations governing the banking industry.7 Deposits in federally regulated banks are protected by the reserve, reporting, and inspection requirements of the federal banking laws; advertising relating to the interest paid on deposits is also regulated.8 In addition, deposits are insured by the Federal Deposit Insurance Corporation. Since its formation in 1933, nearly all depositors in failing banks insured by the FDIC have received payment in full, even payment for the portions of their deposits above the amount insured. 1980 Annual Report of the Federal Deposit Insurance Corporation 18-21 (1981). 13 We see, therefore, important differences between a certificate of deposit purchased from a federally regulated bank and other long-term debt obligations. The Court of Appeals failed to give appropriate weight to the important fact that the purchaser of a certificate of deposit is virtually guaranteed payment in full, whereas the holder of an ordinary longterm debt obligation assumes the risk of the borrower's insolvency. The definition of "security" in the 1934 Act provides that an instrument which seems to fall within the broad sweep of the Act is not to be considered a security if the context otherwise requires. It is unnecessary to subject issuers of bank certificates of deposit to liability under the antifraud provisions of the federal securities laws since the holders of bank certificates of deposit are abundantly protected under the federal banking laws. We therefore hold that the certificate of deposit purchased by the Weavers is not a security.9 IV 14 The Court of Appeals also held that a finder of fact could conclude that the separate agreement between the Weavers and the Piccirillos is a security. Examining the statutory language, supra, n. 3, the court found that the agreement might be a "certificate of interest or participation in any profit-sharing agreement" or an "investment contract." It stressed that the agreement gave the Weavers a share in the profits of the slaughterhouse which would result from the efforts of the Piccirillos. Accordingly, in that court's view, the agreement fell within the definition of "investment contract" stated in Howey, because "the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others." 328 U.S., at 301, 66 S.Ct., at 1104. 15 Congress intended the securities laws to cover those instruments ordinarily and commonly considered to be securities in the commercial world, but the agreement between the Weavers and the Piccirillos is not the type of instrument that comes to mind when the term "security" is used and does not fall within "the ordinary concept of a security." Supra, at 556. The unusual instruments found to constitute securities in prior cases involved offers to a number of potential investors, not a private transaction as in this case. In Howey, for example, 42 persons purchased interests in a citrus grove during a 4-month period. 328 U.S., at 295, 66 S.Ct., at 1101. In C. M. Joiner Leasing, offers to sell oil leases were sent to over 1,000 prospects. 320 U.S., at 346, 64 S.Ct., at 121. In C. M. Joiner Leasing, we noted that a security is an instrument in which there is "common trading." Id., at 351, 64 S.Ct., at 123. The instruments involved in C. M. Joiner Leasing and Howey had equivalent values to most persons and could have been traded publicly. 16 Here, in contrast, the Piccirillos distributed no prospectus to the Weavers or to other potential investors, and the unique agreement they negotiated was not designed to be traded publicly. The provision that the Weavers could use the barn and pastures of the slaughterhouse at the discretion of the Piccirillos underscores the unique character of the transaction. Similarly, the provision that the Weavers could veto future loans gave them a measure of control over the operation of the slaughterhouse not characteristic of a security. Although the agreement gave the Weavers a share of the Piccirillos' profits, if any, that provision alone is not sufficient to make that agreement a security. Accordingly, we hold that this unique agreement, negotiated one-on-one by the parties, is not a security.10 V 17 Whatever may be the consequences of these transactions, they did not occur in connection with the purchase or sale of "securities."11 The Weavers allege that the bank manipulated them so that they would suffer the loss the bank would have borne from the failure of the Columbus Packing Co. Their pendent state-law claims against the bank are not before the Court since the Court of Appeals did not treat the issue of those claims. Accordingly, the case is remanded for consideration of whether the District Court should now entertain the pendent claims. 18 Reversed and remanded. 1 The certificate of deposit pays 71/2% interest and provides that, if the bank permits early withdrawal, the depositor will earn interest at the bank's current savings passbook rate on the amount withdrawn, except that no interest will be paid for the three months prior to withdrawal. When the Weavers purchased the certificate of deposit, it could only be insured up to $40,000 by the FDIC. The ceiling on insured deposits is now $100,000. Act of Mar. 31, 1980, Pub.L. 96-221, 94 Stat. 147, § 308(b)(1), 12 U.S.C. § 1724(b) (1976 ed., Supp.IV). 2 The Court of Appeals also concluded that the pledge of a security is a sale, an issue on which the Federal Circuits were split. We held in Rubin v. United States, 449 U.S. 424, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981), that a pledge of stock is equivalent to a sale for the purposes of the antifraud provisions of the federal securities laws. Accordingly, in determining whether fraud may have occurred here "in connection with the purchase or sale of any security," the only issue now before the Court is whether a security was involved. 3 Section 3(a)(10) of the 1934 Act, as set forth in 15 U.S.C. § 78c(a)(10), provides: "(a) . . . When used in this chapter, unless the context otherwise requires— * * * * * "(10) The term 'security' means any note, stock, treasury stock, bond, debenture, certificate of interest or participation in any profit-sharing agreement or in any oil, gas, or other mineral royalty or lease, any collateral-trust certificate, pre-organization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit, for a security, or in general, any instrument commonly known as a 'security'; or any certificate of interest or participation in, temporary or interim certificate for, receipt for, or warrant or right to subscribe to or purchase, any of the foregoing; but shall not include currency or any note, draft, bill of exchange, or banker's acceptance which has a maturity at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity is likewise limited." We have consistently held that the definition of "security" in the 1934 Act is essentially the same as the definition of "security" in § 2(1) of the Securities Act of 1933, 15 U.S.C. § 77b(1). United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 847, n. 12, 95 S.Ct. 2051, 2058, n. 12, 44 L.Ed.2d 621 (1975). 4 Fitzgibbon, What is a Security? A Redefinition Based on Eligibility to Participate in the Financial Markets, 64 Minn.L.Rev. 893, 912-918 (1980). 5 The definition of a "security" in the 1934 Act, n. 3, supra, includes the term, "certificate of deposit, for a security." However, this term does not refer to certificates of deposit such as the Weavers purchased. Instead, "certificate of deposit, for a security" refers to instruments issued by protective committees in the course of corporate reorganizations. Canadian Imperial Bank of Commerce v. Fingland, 615 F.2d 465, 468 (CA7 1980). 6 In addition, the Court of Appeals noted that the Securities and Exchange Commission had taken the position that certificates of deposit are securities. However, the SEC has filed a brief as amicus curiae in this case, jointly with the Federal Deposit Insurance Corporation, the Board of Governors of the Federal Reserve System, and the Office of the Comptroller of the Currency, which argues that the Weavers' certificate of deposit is not a security. 7 In Teamsters v. Daniel, 439 U.S. 551, 99 S.Ct. 790, 58 L.Ed.2d 808 (1979), we held that a noncontributory, compulsory pension plan was not a security. One of our reasons for our holding in Daniel was that the pension plan was regulated by the Employee Retirement Income Security Act of 1974 (ERISA): "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." Id., at 569-570, 99 S.Ct., at 801-802. Since ERISA regulates the substantive terms of pension plans, and also requires certain disclosures, it was unnecessary to subject pension plans to the requirements of the federal securities laws as well. 8 See, e.g., 12 U.S.C. § 461(b) (1976 ed., Supp.IV) (reserve requirements); 12 U.S.C. §§ 161, 324, and 1817 (1976 ed. and Supp.IV) (reporting requirements); 12 U.S.C. §§ 481, 483, and 1820(b) (1976 ed. and Supp.IV) (inspection requirements); 12 CFR §§ 217.6 and 329.8 (1981) (advertising). 9 We reject respondents' argument that the certificate of deposit was somehow transformed into a security when it was pledged, even though it was not a security when purchased. 10 Cf. Great Western Bank & Trust v. Kotz, 532 F.2d 1252, 1260-1262 (CA9 1976) (Wright, J., concurring) (unsecured note, the terms of which were negotiated face-to-face, given to a bank in return for a business loan, is not a security). 11 It does not follow that a certificate of deposit or business agreement between transacting parties invariably falls outside the definition of a "security" as defined by the federal statutes. Each transaction must be analyzed and evaluated on the basis of the content of the instruments in question, the purposes intended to be served, and the factual setting as a whole.

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455 U.S. 562 102 S.Ct. 1226 71 L.Ed.2d 419 UNITED MINE WORKERS OF AMERICA HEALTH AND RETIREMENT FUNDS, et al., Petitioners,v.Gracie ROBINSON and Juanita Hager, etc. No. 81-61. Argued Jan. 13, 1982. Decided March 8, 1982. Syllabus A 1974 collective-bargaining agreement between the United Mine Workers of America and the Bituminous Coal Operators' Association increased health benefits, payable out of a trust fund financed by contributions from the operators, for widows of coal miners who died prior to the effective date of the agreement and who were receiving pensions when they died, but did not increase such benefits for widows of miners who died prior to the effective date and were still working at the time of death even though they were eligible for pensions. Respondents, widows of miners who died in 1967 and 1971, respectively, and were eligible for pensions but were still working at the time of their deaths, brought a class action in Federal District Court against the trustees of the fund, alleging that the requirement that a miner be receiving a pension at the time of his death in order to make his widow eligible for the increased health benefits had no rational relationship to the purposes of the trust fund and therefore was illegal under § 302 of the Labor Management Relations Act. The District Court denied relief. The Court of Appeals reversed, holding that § 302(c)(5), which requires jointly administered pension trusts to be maintained "for the sole and exclusive benefit of employees . . . and their families and dependents," means that eligibility rules fixed by a collective-bargaining agreement must meet a reasonableness standard, and that in this case the trustees were unable to produce an acceptable explanation for the discrimination between widows of pensioners and widows of pension-eligible miners. Held : Section 302(c)(5) does not authorize federal courts to review for reasonableness the provisions of a collective-bargaining agreement, such as the provisions in question, allocating health benefits among potential beneficiaries of an employee benefit trust fund. Pp. 570-576. (a) Section 302(c)(5)'s language embodies no reasonableness requirement. Its plain meaning is simply that employer contributions to employee benefit trust funds must accrue to the benefit of employees and their families and dependents, to the exclusion of all others. Pp. 570. (b) This reading is amply supported by the legislative history, which indicates that § 302(c)(5) was meant to protect employees from the risk that funds contributed by their employers for the benefit of the employees and their families might be diverted to other union purposes or even to union leaders' private benefit. Pp. 570-572. (c) Such interpretation is also supported by § 302(c)(5)'s other requirements prescribing the conditions that must be satisfied to exempt employer contributions to pension funds from a criminal sanction. P. 572. (d) Absent conflict with federal law, the trustees here breached no fiduciary duties in administering the trust fund in question in accordance with the 1974 collective-bargaining agreement. Pp. 573-574. (e) When neither the collective-bargaining process nor its end product violates any command of Congress, a federal court has no authority to modify the substantive terms of a collective-bargaining contract. Pp. 574-576. 205 U.S.App.D.C. 330, 640 F.2d 416, reversed. E. Calvin Golumbic, Washington, D. C., for petitioners. Larry Franklin Sword, Somerset, Ky., for respondents. Justice STEVENS delivered the opinion of the Court. 1 This case involves a discrimination between two classes of widows of coal miners who died prior to December 6, 1974—those whose husbands were receiving pensions when they died and those whose husbands were still working although they were eligible for pensions. The 1974 collective-bargaining agreement between the United Mine Workers of America and the Bituminous Coal Operators' Association, Inc., increased the health benefits for widows in the former class but made no increase for those in the latter class. The United States Court of Appeals for the District of Columbia Circuit held that this discrimination was arbitrary and therefore violated § 302(c)(5) of the Labor Management Relations Act of 1947 (LMRA).1 205 U.S.App.D.C. 330, 640 F.2d 416 (1981). We granted certiorari to decide whether § 302(c)(5) authorizes federal courts to review for reasonableness the provisions of a collective-bargaining agreement allocating health benefits among potential beneficiaries of an employee benefit trust fund. 454 U.S. 814, 102 S.Ct. 89, 70 L.Ed.2d 82. 2 * A description of the origin of the discrimination may explain why the Court of Appeals considered it arbitrary. The 1950 collective-bargaining agreement between the union and the operators established a fund to provide pension, health, and other benefits for certain miners and their dependents. That agreement defined the operators' obligation to contribute to the fund but delegated the authority to define the amount of benefits and the conditions of eligibility to the trustees of the fund.2 In 1967 the trustees adopted two resolutions governing benefits for widows. Under the first, a widow of a retired miner who was receiving a pension at the time of his death was entitled to a death benefit of $2,000 payable over a 2-year period, and a widow of a miner who was eligible for a pension but who was still working at the time of his death was entitled to a $5,000 benefit payable over a 5-year period.3 The second resolution authorized hospital and medical-care benefits for unremarried widows of deceased miners while they were receiving the widows' benefit authorized by the first resolution.4 The effect of these two resolutions was to provide a greater health benefit for widows of working miners who were eligible for pensions than for widows of miners who were receiving pension benefits. 3 In 1974, because of their concerns about compliance with minimum funding standards of the recently enacted Employee Retirement Income Security Act (ERISA), 88 Stat. 829, as amended, 29 U.S.C. § 1001 et seq. (1976 ed. and Supp.IV), and about the actuarial soundness of the 1950 fund, the union and the operators agreed to restructure the industry's benefit program. They agreed that the amount of benefits and the eligibility requirements, as well as the level of contributions, should be specified in their collective-bargaining agreement. They also decided to replace the single 1950 fund with four separate funds, two of which provided pension benefits while two others, the "1950 Benefit Trust" and the "1974 Benefit Trust," provided health and death benefits. The 1950 Benefit Trust, which is at issue in this case, extended lifetime health coverage to certain widows of miners who died before December 6, 1974, the effective date of the 1974 collective-bargaining agreement.5 4 During the 1974 negotiations, the union originally demanded that all unremarried widows who were entitled to health benefits for either two years or five years under the old plan be extended lifetime health coverage. Both the amount and the uncertainty of the cost of such coverage for these widows concerned the operators. Relatively early in the negotiations they nevertheless accepted the demand as it related to widows of miners who would die after the agreement became effective, but they objected to the requested increase for widows of already deceased miners. The operators estimated that the latter class consisted of between 25,000 and 50,000 widows, whereas the union's estimate was approximately 40,000. Of that total, about 10% were believed to be widows of miners who had been working at the time of their death, even though eligible for pensions, and thus already had been entitled to five years of health benefits. In the final stages of the 1974 negotiations, after a strike had begun, the operators made a package proposal to the union that excluded this smaller group of perhaps 4,000 or 5,000 widows from any increased health benefits. Besides making it possible to conclude an otherwise acceptable, complex collective-bargaining agreement and to avoid a prolonged strike, the union received no separately identifiable quid pro quo for the rejection of this portion of its demands. II 5 Respondents are widows of coal miners who died in 1967 and 1971, respectively. Their husbands were over age 55, had been employed in the industry for over 20 years, and had spent most of their careers in the employ of contributing employers. They were eligible for pensions but were still working at the time of their deaths. Under the 1950 plan, respondents were entitled to $5,000 death benefits and health benefits for five years. They received no additional benefits from the 1974 agreement. Had their husbands applied for the pensions for which they were eligible, they now would be entitled to lifetime health coverage. 6 On their own behalf and as representatives of a class of similarly situated widows and dependents of deceased coal miners, respondents brought this action against the trustees of the funds in the United States District Court for the District of Columbia.6 They alleged that the requirement that a miner actually be receiving a pension for which he was eligible at the time of his death in order to make his survivors eligible for lifetime health benefits has no rational relationship with the purposes of the trust funds and therefore was illegal under § 302 of the LMRA. They prayed that the requirement be declared null and void and that the trustees be ordered to pay to them health benefits retrospectively and prospectively. 7 After certifying the respondents' class,7 and after indicating that the plaintiffs had made a prima facie showing of arbitrariness, the court scheduled a hearing to give the petitioners an opportunity to prove that the discrimination against respondents was not arbitrary. At that hearing the District Court received documents prepared during the 1974 collective bargaining negotiations and heard the testimony of participants in those negotiations. Based on that evidence, the District Court found that "the question of whether or not to provide plaintiffs the benefits they now seek was the subject of explicit, informed and intense bargaining." App. to Pet. for Cert. 25a. The court rejected the argument that the eligibility requirement was arbitrary and capricious and held that "the trustees are bound to adhere to the terms of the agreement." Ibid. The court concluded: 8 "Public policy dictates the limited role of courts in reviewing collectively bargained agreements. The familiar history of the anguished relations between the bargaining parties in this case only underscores the delicacy of the balance set in each agreement. Plaintiffs' relief, if indeed any is due, cannot come from the courts." Ibid. 9 A divided panel of the Court of Appeals reversed. Relying on the § 302(c)(5) requirement that jointly administered pension trusts be maintained "for the sole and exclusive benefit of the employees of [the contributing] employer, and their families and dependents," the court held that any rule denying benefits to employees on whose behalf significant contributions had been made must be explained to its satisfaction, particularly if benefits were authorized for others who had worked a lesser period of time for contributing employers. 205 U.S.App.D.C., at 335, 640 F.2d, at 421. In this case, the trustees were unable to produce an acceptable explanation for the discrimination between widows of pensioners and widows of pension-eligible miners. Specifically, the court held that it was "not enough that the particular eligibility standards were adopted simply because that enabled resolution of a collective bargaining dispute." Id., at 338, 640 F.2d, at 424. Recognizing the legitimacy of a concern about actuarial soundness of pension trust funds, the court held that "financial integrity must be secured by methods dividing beneficiaries from nonbeneficiaries on lines reasonably calculated to further the fund's purposes." Id., at 337-338, 640 F.2d, at 423-424. 10 Judge Robb, in dissent, agreed with the reasoning of the District Court and added the observation that the discrimination against widows of active miners was rational because those widows had received a larger death benefit than widows of pensioners, and because their needs may have been lesser than those of the families of pensioners since their husbands had continued to work after they were eligible for pensions. III 11 The Court of Appeals held that the requirement in § 302(c)(5) that an employee benefit trust fund be maintained "for the sole and exclusive benefit of the employees . . . and their families and dependents" means that eligibility rules fixed by a collective-bargaining agreement must meet a reasonableness standard. The statutory language hardly embodies this reasonableness requirement. Its plain meaning is simply that employer contributions to employee benefit trust funds must accrue to the benefit of employees and their families and dependents, to the exclusion of all others. Indeed, this has been this Court's consistent interpretation of § 302(c)(5). 12 Just last Term, the Court reiterated that "the 'sole purpose' of § 302(c)(5) is to ensure that employee benefit trust funds 'are legitimate trust funds, used actually for the specified benefits to the employees of the employers who contribute to them . . . .' " NLRB v. Amax Coal Co., 453 U.S. 322, 331, 101 S.Ct. 2789, 2795, 69 L.Ed.2d 672 (quoting 93 Cong.Rec. 4678 (1947), reprinted in 2 Legislative History of the Labor Management Relations Act, 1947, p. 1305 (Leg.Hist.LMRA)). See Arroyo v. United States, 359 U.S. 419, 425-426, 79 S.Ct. 864, 868, 3 L.Ed.2d 915.8 Accord, Walsh v. Schlecht, 429 U.S. 401, 410-411, 97 S.Ct. 679, 686, 50 L.Ed.2d 641; Lewis v. Benedict Coal Corp., 361 U.S. 459, 474, 80 S.Ct. 489, 497, 4 L.Ed.2d 442 (Frankfurter, J., dissenting). This reading is amply supported by the legislative history. See,e.g., 93 Cong.Rec. 4877 (1947), 2 Leg.Hist.LMRA, at 1312;9 93 Cong.Rec., at 4752-4753, 2 Leg.Hist.LMRA, at 1321-1322.10 The section was meant to protect employees from the risk that funds contributed by their employers for the benefit of the employees and their families might be diverted to other union purposes or even to the private benefit of faithless union leaders. Proponents of this section were concerned that pension funds administered entirely by union leadership might serve as "war chests" to support union programs or political factions, or might become vehicles through which "racketeers" accepted bribes or extorted money from employers. 13 Our interpretation of the purpose of the "sole and exclusive benefit" requirement is reinforced by the other requirements of § 302(c)(5). Section 302(c)(5) is an exception in a criminal statute that broadly prohibits employers from making direct or indirect payments to unions or union officials. Each of the specific conditions that must be satisfied to exempt employer contributions to pension funds from the criminal sanction is consistent with the nondiversion purpose. The fund must be established "for the sole and exclusive benefit" of employees and their families and dependents; contributions must be held in trust for that purpose and must be used exclusively for health, retirement, death, disability, or unemployment benefits; the basis for paying benefits must be specified in a written agreement; and the fund must be jointly administered by representatives of management and labor.11 All the conditions in the section fortify the basic requirement that employer contributions be administered for the sole and exclusive benefit of employees. None of the conditions places any restriction on the allocation of the funds among the persons protected by § 302(c)(5). 14 The Court of Appeals did not attempt mpt to ground its holding on the text or legislative history of § 302(c)(5). Rather, the court relied upon cases in which trustees of employee benefit trust funds, not the collective-bargaining agreement, fixed the eligibility rules and benefit levels. The Court of Appeals has held in those cases "that the Trustees have 'full authority . . . with respect to questions of coverage and eligibility' and that the court's role is limited to ascertaining whether the Trustees' broad discretion has been abused by the adoption of arbitrary or capricious standards." Pete v. United Mine Workers of America Welfare & Retirement Fund of 1950, 171 U.S.App.D.C. 1, 9, 517 F.2d 1275, 1283 (1975) (en banc) (footnote omitted). Noting that "[t]he institutional arrangements creating this Fund and specifying the purposes to which it is to be devoted are cast expressly in fiduciary form," the court stated that "the Trustees, like all fiduciaries, are subject to judicial correction in a proper case upon a showing that they have acted arbitrarily or capriciously towards one of the persons to whom their trust obligations run." Kosty v. Lewis, 115 U.S.App.D.C. 343, 346, 319 F.2d 744, 747 (1963), cert. denied, 375 U.S. 964, 84 S.Ct. 482, 11 L.Ed.2d 414. Those cases, however, provide no support for the Court of Appeals' holding in this case.12 The petitioner trustees were not given "full authority" to determine eligibility requirements and benefit levels, for these were fixed by the 1974 collective-bargaining agreement. By the terms of the trust created by that agreement, the trustees are obligated to enforce these determinations unless modification is required to comply with applicable federal law.13 The common law of trusts does not alter this obligation. See NLRB v. Amax Coal Co., 453 U.S., at 336-337, 101 S.Ct., at 2797-2798; Restatement (Second) of Trusts § 164 (1959). Cf. 29 U.S.C. § 1104(a)(1)(D) (1976 ed., Supp.IV). Absent conflict with federal law, then, the trustees breached no fiduciary duties in administering the 1950 Benefit Trust in accordance with the terms established in the 1974 collective-bargaining agreement. 15 Section 302(c)(5) plainly does not impose the Court of Appeals' reasonableness requirement, and respondents do not offer any alternative federal law to sustain the court's holding. There is no general requirement that the complex schedule of the various employee benefits must withstand judicial review under an undefined standard of reasonableness. This is no less true when the potential beneficiaries subject to discriminatory treatment are not members of the bargaining unit; we previously have recognized that former members and their families may suffer from discrimination in collective-bargaining agreements because the union need not "affirmatively . . . represent [them] or . . . take into account their interests in making bona fide economic decisions in behalf of those whom it does represent." Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 181, n. 20, 92 S.Ct. 383, 398, n. 20, 30 L.Ed.2d 341.14 Moreover, because finite contributions must be allocated among potential beneficiaries, inevitably financial and actuarial considerations sometimes will provide the only justification for an eligibility condition that discriminates between different classes of potential applicants for benefits. As long as such conditions do not violate federal law or policy, they are entitled to the same respect as any other provision in a collective-bargaining agreement. 16 The substantive terms of jointly administered employee benefit plans must comply with the detailed and comprehensive standards of the ERISA. The terms of any collective-bargaining agreement must comply with federal laws that prohibit discrimination on grounds of race, color, religion, sex, or national origin;15 that protect veterans;16 that regulate certain industries;17 and that preserve our competitive economy.18 Obviously, an agreement must also be substantively consistent with the National Labor Relations Act, 29 U.S.C. § 151 et seq.19 Moreover, in the collective-bargaining process, the union must fairly represent the interests of all employees in the unit.20 But when neither the collective-bargaining process nor its end product violates any command of Congress, a federal court has no authority to modify the substantive terms of a collective-bargaining contract.21 17 The record in this case discloses no violation of § 302(c)(5) or of any other federal law. The judgment of the Court of Appeals is therefore reversed. 18 It is so ordered. 1 That section provides in relevant part: "The provisions of this section [forbidding transfers between employer and representatives of employees] shall not be applicable . . . (5) with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families and dependents (or of such employees, families, and dependents jointly with the employees of other employers making similar payments, and their families and dependents): Provided, That (A) such payments are held in trust for the purpose of paying, either from principal or income or both, for the benefit of employees, their families and dependents, for medical or hospital care, pensions on retirement or death of employees, compensation for injuries or illness resulting from occupational activity or insurance to provide any of the foregoing, or unemployment benefits or life insurance, disability and sickness insurance, or accident insurance; (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer, and employees and employers are equally represented in the administration of such fund, together with such neutral persons as the representatives of the employers and the representatives of employees may agree upon . . .; and (C) such payments as are intended to be used for the purpose of providing pensions or annuities for employees are made to a separate trust which provides that the funds held therein cannot be used for any purpose other than paying such pension or annuities. . . ." 61 Stat. 157, as amended, 29 U.S.C. § 186(c) (1976 ed., Supp.IV). 2 The National Bituminous Coal Wage Agreement of 1950, in creating the United Mine Workers of America Welfare and Retirement Fund of 1950, provided in part: "Subject to the stated purposes of this Fund, the Trustees shall have full authority, within the terms and provisions of the 'Labor-Management Relations Act, 1947,' and other applicable law, with respect to questions of coverage and eligibility, priorities among classes of benefits, amounts of benefits, methods of providing or arranging for provisions for benefits, investment of trust funds, and all other related matters." App. to Pet. for Cert. 78a. 3 Resolution No. 68, adopted on January 19, 1967, established "a Widows and Survivors Benefit of five thousand dollars ($5,000.00) as a result of the death of miners who at the time of death were regularly employed in a classified job in the bituminous coal industry by coal operators signatory to the National Bituminous Coal Wage Agreement of 1950, as amended, other than those exempted from said Agreement, and two thousand dollars ($2,000.00) in the event of the death of miners who at the time of death were receiving Trust Fund pensions and not employed outside the coal industry. . . ." App. to Pet. for Cert. 82a. The $5,000 benefit was payable in 60 monthly installments and the $2,000 benefit was payable in 22 monthly installments. Id., at 85a. 4 Resolution No. 69, also adopted on January 19, 1967, provided in part: "The following persons shall be eligible for benefits herein provided for hospital and medical care . . .: "5. Unremarried widows and unmarried dependent children under twenty-two (22) years of age of deceased miners described in Subparagraph B of this Paragraph I as long as they are the recipients of Widows and Survivors Benefits provided in Paragraph II of Resolution No. 68." App. to Pet. for Cert. 90a. 5 Article II, E(3), of the 1950 Benefit Trust provides that lifetime health benefits shall be provided to the survivors "of a miner who died . . . [p]rior to the effective date of this Plan . . . at a time when he was receiving a retirement or disability pension under the eligibility rules then in effect of the United Mine Workers of America Welfare and Retirement Fund of 1950." App. to Pet. for Cert. 114a. "By the trustee's interpretation, this clause applies to survivors of miners who died while collecting pensions and, as well, to survivors of those who, though not actually receiving retirement payments at death, had ceased work and applied for them. This construction, however, excludes widows and dependents of those miners who were eligible for pensions but who continued working and later died before applying for health-care benefits." 205 U.S.App.D.C. 330, 333, 640 F.2d 416, 419 (1981)(footnotes omitted). 6 Federal district courts have jurisdiction to restrain violations of § 302. 29 U.S.C. § 186(e). 7 "The class represents all surviving spouses and dependents of deceased miners who satisfied the age and service requirements for pension benefits at the time of death and who "(1) were working in classified service in the coal industry at the time of death and had not applied for a pension, or "(2) had applied for and were eligible to receive pension benefits but were not receiving such benefits at the time of death because of their return to classified service in the coal industry." 449 F.Supp. 941, 942 (1978). 8 The Court in Arroyo stated: "Those members of Congress who supported [§ 302] were concerned with corruption of collective bargaining through bribery of employee representatives by employers, with extortion by employee representatives, and with the possible abuse by union officers of the power which they might achieve if welfare funds were left to their sole control. Congressional attention was focussed particularly upon the latter problem because of the demands which had then recently been made by a large international union for the establishment of a welfare fund to be financed by employers' contributions and administered exclusively by union officials. See United States v. Ryan, 350 U.S. 299, 76 S.Ct. 400, 100 L.Ed. 335. "Congress believed that if welfare funds were established which did not define with specificity the benefits payable thereunder, a substantial danger existed that such funds might be employed to perpetuate control of union officers, for political purposes, or even for personal gain. See 92 Cong.Rec. 4892-4894, 4899, 5181, 5345-5346; S.Rep.No.105, 80th Cong., 1st Sess., at 52; 93 Cong.Rec. 4678, 4746-4747. To remove these dangers, specific standards were established to assure that welfare funds would be established only for purposes which Congress considered proper and expended only for the purposes for which they were established. See Cox, Some Aspects of the Labor Management Relations Act, 1947, 61 Harv.L.Rev. 274, 290" (footnotes omitted). 9 Senator Taft, the primary author of the LMRA, stated: "Certainly unless we impose some restrictions we shall find that the welfare fund will become merely a war chest for the particular union, and that the employees for whose benefit it is supposed to be established, for certain definite welfare purposes, will have no legal rights and will not receive the kind of benefits to which they are entitled after such deductions from their wages." 10 Senator Ball, one of the sponsors of the floor amendment that became § 302, stated: "All that is sought to be done by the amendment is to protect the rights of employees. After all, on any reasonable basis, payments by an employer to such a fund are in effect compensation to his employees. All that is sought to be done in the amendment is to see to it that the rights of employees in the fund are protected. . . . * * * * * "In other words, when the union has complete control of this fund, when there is no detailed provision in the agreement creating the fund respecting the benefits which are to go to employees, the union and its leadership will always come first in the administration of the fund, and the benefits to which the employees supposedly are entitled will come second." 11 See NLRB v. Amax Coal Co., 453 U.S. 322, 328-329, 101 S.Ct. 2789, 2794, 69 L.Ed.2d 672; H.R.Rep.No.510, 80th Cong., 1st Sess., 66-67 (1947), 1 Leg.Hist.LMRA, at 570-571. 12 In NLRB v. Amax Coal Co., supra, at 330, 101 S.Ct., at 2794, the Court held that in enacting § 302(c)(5) "Congress intended to impose on trustees traditional fiduciary duties." The Court did not decide, nor do we decide today, whether federal courts sitting as courts of equity are authorized to enforce those duties. It is, of course, clear that compliance with the specific standards of § 302(c)(5) in the administration of welfare funds is enforceable in federal district courts under § 302(e) of the LMRA. See Arroyo v. United States, 359 U.S. 419, 426-427, 79 S.Ct. 864, 868-869, 3 L.Ed.2d 915. 13 "The Trustees are authorized, upon approval by the Employers and the Union, to make such changes in the Plans and Trusts hereunder as they may deem to be necessary or appropriate. "They are also authorized and directed, after adequate notice and consultation with the Employers and Union, to make such changes in the Plans and Trusts hereunder, including any retroactive modifications or amendments, which shall be necessary: "(a) to conform the terms of each Plan and Trust to the requirements of ERISA, or any other applicable federal law, and the regulations issued thereunder; * * * * * "(d) to comply with all applicable court or government decisions or ruling." National Bituminous Coal Wage Agreement of 1974, art. XX, § (h)(5), App. to Pet. for Cert. 106a. 14 We also recognized that these persons are not without protection: "Under established contract principles, vested retirement rights may not be altered without the pensioner's consent. See generally Note, 70 Col.L.Rev. 909, 916-920 (1970). The retiree, moreover, would have a federal remedy under § 301 of the Labor Management Relations Act for breach of contract if his benefits were unilaterally changed. See Smith v. Evening News Assn., 371 U.S. 195, 200-201, 83 S.Ct. 267, 270, 9 L.Ed.2d 246 (1962); Lewis v. Benedict Coal Corp., 361 U.S. 459, 470, 80 S.Ct. 489, 495, 4 L.Ed.2d 442 (1960)." 404 U.S., at 181, n. 20, 92 S.Ct., at 398, n. 20. 15 See, e.g., Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (Title VII of the Civil Rights Act of 1964); Corning Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2223, 41 L.Ed.2d 1 (Equal Pay Act). 16 See, e.g., Fishgold v. Sullivan Dry Dock & Repair Corp., 328 U.S. 275, 285, 66 S.Ct. 1105, 1111, 90 L.Ed. 1230. 17 See, e.g., Norfolk & Western R. Co. v. Nemitz, 404 U.S. 37, 92 S.Ct. 185, 30 L.Ed.2d 198. 18 See, e.g., Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626. 19 See, e.g., NLRB v. Magnavox Co., 415 U.S. 322, 94 S.Ct. 1099, 39 L.Ed.2d 358; Radio Officers v. NLRB, 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455. 20 See, e.g., Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842; Syres v. Oil Workers, 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785; Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048; Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173. See also Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283. 21 See, e.g., Carbon Fuel Co. v. Mine Workers, 444 U.S. 212, 218-219, 100 S.Ct. 410, 414-415, 62 L.Ed.2d 394; H. K. Porter Co. v. NLRB, 397 U.S. 99, 105-108, 90 S.Ct. 821, 824-826, 25 L.Ed.2d 146; NLRB v. Insurance Agents, 361 U.S. 477, 488, 80 S.Ct. 419, 426, 4 L.Ed.2d 454; Teamsters v. Oliver, 358 U.S. 283, 295-296, 79 S.Ct. 297, 304, 3 L.Ed.2d 312; NLRB v. American National Ins. Co., 343 U.S. 395, 404, 72 S.Ct. 824, 829, 96 L.Ed. 1027.

67

455 U.S. 577 102 S.Ct. 1235 71 L.Ed.2d 432 BREAD POLITICAL ACTION COMMITTEE, et al., Appellants,v.FEDERAL ELECTION COMMITTEE, et al. No. 80-1481. Argued Jan. 19, 1982. Decided March 8, 1982. Syllabus Section 310(a) of the Federal Election Campaign Act of 1971 lists three categories of plaintiffs who may challenge the constitutionality of any provision of the Act in a federal district court action in which the district court must certify all questions of constitutionality to the court of appeals sitting en banc: (1) the Federal Election Commission, (2) "the national committee of any political party," and (3) "any individual eligible to vote in any election for the office of President." Appellants, two trade associations and three political action committees (PAC's), filed an action in Federal District Court, challenging the validity of the provisions of the Act limiting the extent to which such associations and their PAC's may solicit funds for political purposes, and sought expedited consideration of the action under § 310(a). The District Court denied such consideration on the ground that appellants were not within any of the three categories listed as eligible to invoke § 310(a)'s expedited procedures. The Court of Appeals reversed and remanded, holding that § 310(a) is available for use by plaintiffs whether they belong to an enumerated category or not, and on subsequent certification from the District Court upheld the challenged solicitation provisions. Held: Only parties belonging to one of the three categories listed in § 310(a) may invoke its expedited procedures, and since appellants are not within any of those categories, they may not invoke such procedures. The text of § 310(a) states plainly enough which plaintiffs may invoke its special procedures. This plain language controls the construction of § 310(a), absent "clear evidence" of a "clearly expressed" contrary congressional intent, and appellants have not met the burden of showing such "clear evidence" of a contrary intent. The fact that Congress wanted a broad class of questions to be speedily resolved does not imply that it intended the courts to augment the enumeration of qualified plaintiffs. Nor is there any merit to appellants' contention that Congress specified the three enumerated classes of plaintiffs simply to remove any doubts about their standing, but not to exclude others by implication. Pp. 580-585. 635 F.2d 621, reversed and remanded. Jeffrey Cole, Chicago, Ill., for appellants. Charles N. Steele, Washington, D. C., for appellees. Justice O'CONNOR delivered the opinion of the Court. 1 Section 310(a) of the Federal Election Campaign Act of 1971 (FECA), 88 Stat. 1285, as amended, 2 U.S.C. § 437h(a) (1976 ed., Supp.IV), lists three categories of plaintiffs who may challenge the constitutional validity of FECA in specially expedited suits: (1) the Federal Election Commission (FEC), (2) "the national committee of any political party," and (3) "any individual eligible to vote in any election for the office of President." In this case, we address a question we expressly reserved in California Medical Assn. v. FEC, 453 U.S. 182, 187 n. 6, 101 S.Ct. 2712, 2717, n. 6, 69 L.Ed.2d 567 (1981): whether a party not belonging to one of the three categories listed in § 437h(a) may nonetheless invoke its procedures. 2 * The appellants are two trade associations and three political action committees (PAC's): the National Restaurant Association and its associated PAC, the Restaurateurs Politicyl Action Committee, the National Lumber and Building Material Dealers Association and its associated PAC, the Lumber Dealers Political Action Committee, and the Bread Political Action Committee, the PAC associated with the American Bakers Association. In order to challenge the validity of 2 U.S.C. § 441b(b)(4)(D), which has the effect of limiting the extent to which trade associations and their PAC's may solicit funds for political purposes,1 the appellants filed an action in the United States District Court for the Northern District of Illinois, seeking expedited consideration of their suit under the procedures set forth in § 437h.2 The District Court denied certification under § 437h on the ground that the plaintiff trade associations and PAC's do not belong to any of the three categories of plaintiffs listed in § 437h(a) as eligible to invoke its expedited procedures. On an interlocutory appeal from this ruling, a panel of the Court of Appeals reversed, holding that § 437h(a) is available for use by plaintiffs whether they belong to an enumerated category or not. 591 F.2d 29 (CA7 1979). On remand, the District Court, as required by § 437h(a), first made findings of fact and then certified the case back to the Court of Appeals sitting en banc for a determination on the constitutional questions raised by the appellants. The en banc court declined to overrule the earlier panel decision regarding the reach of § 437h(a), and proceeded to the merits of the appellants' claims, upholding the constitutionality of the challenged provisions. 635 F.2d 621 (CA7 1980). The present appeal to this Court followed, confronting us with the question whether § 437h(a) should be construed to permit parties, such as the appellants, who do not belong to one of its three specifically enumerated classes, nonetheless to invoke its procedures. II 3 Our analysis of this issue of statutory construction "must begin with the language of the statute itself," Dawson Chemical Co. v. Rohm & Haas Co., 448 U.S. 176, 187, 100 S.Ct. 2601, 2607, 65 L.Ed.2d 696 (1980), and "[a]bsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). Moreover, when the statute to be construed creates, as § 437h(a) does, a class of cases that command the immediate attention of this Court and of the courts of appeals sitting en banc, displacing existing caseloads and calling court of appeals judges away from their normal duties for expedited en banc sittings, close construction of statutory language takes on added importance. As we have said: "Jurisdictional statutes are to be construed 'with precision and with fidelity to the terms by which Congress has expressed its wishes'; and we are particularly prone to accord 'strict construction of statutes authorizing appeals' to this Court." Palmore v. United States, 411 U.S. 389, 396, 93 S.Ct. 1670, 1675, 36 L.Ed.2d 342 (1973) (citations omitted). In short, the plain language of § 437h(a) controls its construction, at least in the absence of "clear evidence," United States v. Apfelbaum, 445 U.S. 115, 121, 100 S.Ct. 948, 952, 68 L.Ed.2d 250 (1980), of a "clearly expressed legislative intention to the contrary," Consumer Product Safety Comm'n v. GTE Sylvania, Inc., supra, 447 U.S. at 108, 100 S.Ct. at 2056. 4 The text of § 437h(a) states plainly enough which plaintiffs may invoke its special procedures: "The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President." Thus, § 437h(a) affords its unique system of expedited review to three carefully chosen classes of persons who might meet the minimum standing requirements of Art. III. The only artificial persons expressly entitled to invoke § 437h(a) are the Federal Election Commission, which is charged with enforcing the Act, and the national committees of political parties, which play a central role in the political process. 5 In the face of the obvious meaning of the language of § 437h(a), the appellants urge what they concede to be an "expansive construction" of the section. Reply Brief for Appellants 3. Indeed, the construction they advocate could not be more expansive, for they apparently argue that Congress intended the class of permissible plaintiffs to be defined by the outermost limits of Art. III. The appellants, however, fall far short of providing "clear evidence" of a "clearly expressed legislative intention" that the unique expedited procedures of § 437h be afforded to parties other than those belonging to the three listed categories. 6 In fact, the section's legislative history is too brief and ambiguous to provide much solace to either side of the present controversy. When Senator Buckley introduced the section during the deliberations on the Federal Election Campaign Act Amendments of 1974, he limited his explanation to the following comments: "[I]t is a modification that I am sure will prove acceptable to the managers of the bill. It merely provides for the expeditious review of the constitutional questions I have raised. I am sure we will all agree that if, in fact, there is a serious question as to the constitutionality of this legislation, it is in the interest of everyone to have the question determined by the Supreme Court at the earliest possible time." 120 Cong. Rec. 10562 (1974).3 7 In the House, Representative Frenzel echoed this theme in responding to a question from another Member of the House about the constitutionality of the Amendments: 8 "Any time we pass legislation in this field we are causing constitutional doubts to be raised. I have many myself. I think the gentleman has pointed out a good one. We have done the best we could to bring out a bill which we hope may pass the constitutional test. But, we do not doubt that some questions will be raised quickly. 9 "I do call the attention of the gentleman to the fact that any individual under this bill has a direct method to raise these questions and to have those considered as quickly as possible by the Supreme Court." Id., at 35140 (emphasis added). 10 These brief remarks by two Members of Congress nearly exhaust the legislative history of the section. The appellants nevertheless suggest that these comments suffice to prove that, in passing § 437h, Congress focused solely on expediting the resolution of all disputes over the constitutionality of FECA, and was unconcerned with the identity of the challenging plaintiffs. In support of this view, the appellants point out that in the first sentence of § 437h(a) Congress authorized suits to challenge "any" provision of the Act, while the second sentence requires the district courts to certify "all" constitutional questions under the Act to the court of appeals sitting en banc. According to the appellants, the fact that Congress expressly extended § 437h to "all" constitutional questions about "any" provision of the Act compels the inference that Congress also intended that § 437h be afforded to any and all plaintiffs, even those not expressly listed in the Act. 11 The obvious fact that Congress wanted a broad class of questions to be speedily resolved, however, scarcely implies that Congress intended the courts to augment Congress' enumeration of qualified plaintiffs. Indeed, if it suggests anything, the structure of the Act suggests that Congress knew how to specify that "all" constitutional questions about "any" provision of the Act may be raised, and therefore could as easily have directed that "any" person might invoke the unique procedures of § 437h. But Congress did not do so. Instead, it went to the trouble of specifying that only two precisely defined types of artificial entities and one class of natural persons could bring these actions. 12 Reaching out for some support, the appellants hypothesize that Congress specified the three enumerated classes to remove any doubts about their standing, but not to exclude others by implication. According to the appellants, absent explicit congressional authorization, the members of the three listed classes might not meet the prudential standing requirements this Court imposes. See, e. g., Warth v. Seldin, 422 U.S. 490, 498-501, 95 S.Ct. 2197, 2204-2206, 45 L.Ed.2d 343 (1975). This argument, however, puts the appellants in the awkward position of simultaneously noting that express congressional authorization is required to overcome prudential standing limitations, while urging us to read an implicit grant of standing into congressional silence. Of course, had Congress intended the result the appellants desire, it could easily have achieved it by expressly granting standing to the limits of Art. III, and then listing as specific examples the three classes now enumerated in § 437h(a). Instead, Congress gave no affirmative indication that it meant to include in its grant any parties beyond the three listed classes. 13 For these reasons, we cannot impute to Congress the intention to confer standing on the broadest class imaginable. We do not assume the maximum jurisdiction permitted by the Constitution, absent a clearer mandate from Congress than here expressed. We therefore hold that only parties meeting the express requirements of § 437h(a) may invoke its procedures. Because the appellants do not meet these requirements, they may not invoke the expedited procedures of § 437h. 14 The appellants complain that the practical result of this ruling may be that some provisions of FECA will escape expedited review, thereby defeating Congress' intent that the courts pass as quickly as possible on the validity of FECA. Without a clearer indication of congressional intent than provided by the extremely sketchy legislative history of § 437h, however, we believe the best evidence of what Congress wanted is found in the statute itself, where Congress listed only three types of parties who may invoke the expedited procedures of § 437h. Others, evidently, are remitted to the usual remedies. 15 We note, moreover, that our decision today raises no threat that an aggrieved party with standing will be unable to litigate questions arising under FECA, since our holding affects only the availability of the extraordinary procedures afforded by § 437h. Section 437g, for example, permits either the Commission or, under the proper circumstances, a private person to bring a civil action to enforce the Act, and such suits are themselves given expedited treatment under § 437g(a)(10), being advanced on the calendar ahead of all other actions except those given even higher priority by either § 437g or § 437h. Thus, any challenge, constitutional or nonconstitutional, may be raised as a defense in an enforcement action, and will be afforded expedited review.4 Furthermore, plaintiffs meeting the usual standing requirements can challenge provisions of the Act under the federal-question jurisdiction granted the federal courts by 28 U.S.C. § 1331 (1976 ed., Supp.IV).5 16 In sum, the appellants have not met the burden of showing such "clear expression" or "clear evidence" of congressional intent to make the procedures of § 437h available to categories of plaintiffs other than those listed in that section. Accordingly, we reverse and remand for proceedings consistent with this opinion. 17 So ordered. 1 Title 2 U.S.C. § 441b(b)(4)(D) permits an incorporated trade association to solicit contributions to its (PAC) only from "the stockholders and executive or administrative personnel of the member corporations of such trade association and the families of such stockholders or personnel to the extent that such solicitation of such stockholders and personnel, and their families, has been separately and specifically approved by the member corporation involved, and such member corporation does not approve any such solicitation by more than one such trade association in any calendar year." Other provisions of FECA permit a trade association to solicit contributions to its PAC from its members, § 441b(b)(4)(C), and from its own executive and administrative personnel and their families, § 441b(b)(4)(A). 2 That section provides: "Actions, including declaratory judgments for construction of constitutional questions; eligible plaintiffs; certification of such questions to courts of appeals sitting en banc "(a) The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President may institute such actions in the appropriate district court of the United States, including actions for declaratory judgment, as may be appropriate to construe the constitutionality of any provision of this Act. The district court immediately shall certify all questions of constitutionality of this Act to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc. "Appeal to Supreme Court; time for appeal "(b) Notwithstanding any other provision of law, any decision on a matter certified under subsection (a) of this section shall be reviewable by appeal directly to the Supreme Court of the United States. Such appeal shall be brought no later than 20 days after the decision of the court of appeals. "Advancement on appellate docket and expedited disposition of certified questions "(c) It shall be the duty of the court of appeals and of the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any matter certified under subsection (a) of this section." 2 U.S.C. §§ 437h(a)-(c) (1976 ed. and Supp.IV). The grant of standing to the three listed categories of plaintiffs is similar to the grant Congress had adopted earlier in 26 U.S.C. § 9011(b) authorizing the "Commission, the national committee of any political party, and individuals eligible to vote for President" to bring suits to implement or construe the Presidential Election Campaign Fund Act, 26 U.S.C. §§ 9001-9013. 3 Perhaps because Senator Buckley's intent as expressed in the legislative history remains uncertain, the appellants have submitted to this Court affidavits from Senator Buckley and David A. Keene, the Executive Assistant to the Senator who prepared the original draft of § 437h, expressing the belief that the amendment was not intended to exclude organizations from challenging the constitutionality of the Act. See Affidavit of James Buckley (Nov. 11, 1977), reprinted at App. 110, 112; Affidavit of David A. Keene (Oct. 21, 1977), reprinted at App. 106, 109. We cannot give probative weight to these affidavits, however, because "[s]uch statements 'represent only the personal views of th[is] legislato[r], since the statements were [made] after passage of the Act.' " Regional Rail Reorganization Act Cases, 419 U.S. 102, 132, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), quoting National Woodwork Manufacturers Assn. v. NLRB, 386 U.S. 612, 639 n. 34, 87 S.Ct. 1250, 1265, 18 L.Ed.2d 357 (1967). See also Quern v. Mandley, 436 U.S. 725, 736, n. 10, 98 S.Ct. 2068, 2075, 56 L.Ed.2d 658 (1978), in which we noted that "post hoc observations by a single member of Congress carry little if any weight." 4 The appellants suggest that an anomaly is thereby created, unless parties not listed in § 437h(a) can invoke that section's procedures, because nonconstitutional challenges raised as defenses will be granted expedited service under 2 U.S.C. § 437g(a)(10) (1976 ed., Supp.IV), while constitutional challenges brought by plaintiffs not listed in § 437h(a) will be treated like any other case on the docket. No evidence exists that Congress ever pondered this subtlety, or, if it did, what it thought about it. Suffice it to say that we do not consider the possibility that Congress may have seen fit to expedite claims raised by defendants, but not similar claims raised by some plaintiffs, to shed much light on Congress' purpose in enumerating three specific classes of eligible plaintiffs in § 437h(a). 5 We express no opinion, however, on the question whether the appellants meet the standing requirements under § 1331.

23

455 U.S. 591 102 S.Ct. 1303 71 L.Ed.2d 480 George SUMNER, Wardenv.Robert MATA. No. 81-844. March 22, 1982. PER CURIAM. 1 This is the second time that this matter has come before us. In Summer v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), decided last Term, we held that 28 U.S.C. § 2254(d) requires federal courts in habeas proceedings to accord a presumption of correctness to state-court findings of fact. This requirement could not be plainer. The statute explicitly provides that "a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction . . ., shall be presumed to be correct." Only when one of seven specified factors is present or the federal court determines that the state-court finding of fact "is not fairly supported by the record" may the presumption properly be viewed as inapplicable or rebutted.1 2 We held further that the presumption of correctness is equally applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact, and we held that if a federal court concludes that the presumption of correctness does not control, it must provide a written explanation of the reasoning that led it to conclude that one or more of the first seven factors listed in § 2254(d) were present, or the "reasoning which led it to conclude that the state finding was 'not fairly supported by the record.' " 449 U.S., at 551, 101 S.Ct., at 771. 3 Applying these general principles to the case at hand, we found in our decision last Term that the Court of Appeals for the Ninth Circuit had neither applied the presumption of correctness nor explained why it had not. See Mata v. Sumner, 611 F.2d 754 (C.A.9 1979). Instead, the court had made findings of fact that were "considerably at odds" with the findings made by the California Court of Appeal without any mention whatsoever of § 2254(d). 449 U.S., at 543, 101 S.Ct., at 767. 4 In reaching the conclusion that the Court of Appeals had not followed § 2254(d), we rejected the argument, advanced by respondent Mata, that the findings of fact made by the Court of Appeals and the California court were not in conflict.2 Mata was convicted in 1973 in state trial court of the first-degree murder of a fellow inmate. There were three witnesses to the murder, each of whom identified Mata as a participant in the killing.3 On appeal to the California Court of Appeal, Mata argued for the first time that the photographic lineup procedure used by the state police was so impermissibly suggestive as to deprive him of due process. After examining the evidence,4 the California Court of Appeal rejected this assertion. It concluded that the pretrial procedures had not been unfair under the test stated by this Court in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968): 5 "Reviewing the facts of the present case to determine if the particular photographic identification procedure used contained the proscribed suggestive characteristics, we first find that the photographs were available for cross-examination purposes at the trial. We further find that there is no showing of influence by the investigating officers: that the witnesses had an adequate opportunity to view the crime; and that their descriptions are accurate. The circumstances thus indicate the inherent fairness of the procedure, and we find no error in the admission of the identification evidence." App. to Pet. for Cert. C-8. 6 The Court of Appeals for the Ninth Circuit reached a different conclusion,5 and did so on the basis of factfindings that were clearly in conflict with those made by the state court. We noted that the Court of Appeals had relied, inter alia, on its own conflicting findings that "(1) the circumstances surrounding the witnesses' observation of the crime were such that there was a grave likelihood of misidentification; (2) the witnesses had failed to give sufficiently detailed descriptions of the assailant; and (3) considerable pressure from both prison officials and prison factions had been brought to bear on the witnesses." Sumner v. Mata, 449 U.S., at 543, 101 S.Ct., at 767.6 We concluded that the "findings made by the Court of Appeals for the Ninth Circuit are considerably at odds with the findings made by the California Court of Appeal." Ibid. We remanded so that the Court of Appeals could review its determination of the issue and either apply the statutory presumption or explain why the presumption did not apply in light of the factors listed in § 2254(d). We expressed no view as to whether the procedures had been impermissibly suggestive. That was a question for the Court of Appeals to decide in the first instance after complying with § 2254(d). 7 On remand, the Court of Appeals found that it was not necessary for it to apply the presumption of correctness or explain why the presumption should not be applied. 649 F.2d 713 (C.A.9, 1981). Rather, agreeing with the argument advanced by Mata and the dissenting opinion in Sumner v. Mata, supra, the court concluded that § 2254(d) was simply irrelevant in this case because its factfindings in no way differed from those of the state court.7 It argued that its disagreement with the state court was "over the legal and constitutional significance of certain facts" and not over the facts themselves. 649 F.2d, at 716. It found that whether or not the pretrial photographic identification procedure used in this case was impermissibly suggestive was a mixed question of law and fact as to which the presumption of correctness did not apply. And it reinstated its conclusion that the pretrial procedures had been impermissibly suggestive and that Mata therefore was entitled to release or a new trial.8 8 We have again reviewed this case and conclude that the Court of Appeals apparently misunderstood the terms of our remand. Nor did it comply with the requirements of § 2254(d). We agree with the Court of Appeals that the ultimate question as to the constitutionality of the pretrial identification procedures used in this case is a mixed question of law and fact that is not governed by § 2254(d).9 In deciding this question, the federal court may give different weight to the facts as found by the state court and may reach a different conclusion in light of the legal standard. But the questions of fact that underlie this ultimate conclusion are governed by the statutory presumption as our earlier opinion made clear. Thus, whether the witnesses in this case had an opportunity to observe the crime or were too distracted; whether the witnesses gave a detailed, accurate description; and whether the witnesses were under pressure from prison officials or others are all questions of fact as to which the statutory presumption applies.10 9 Of course, the federal courts are not necessarily bound by the state court's findings. Section 2254(d) permits a federal court to conclude, for example, that a state finding was "not fairly supported by the record." But the statute does require the federal courts to face up to any disagreement as to the facts and to defer to the state court unless one of the factors listed in § 2254(d) is found. Although the distinction between law and fact is not always easily drawn, we deal here with a statute that requires the federal courts to show a high measure of deference to the factfindings made by the state courts. To adopt the Court of Appeals' view would be to deprive this statutory command of its important significance. 10 Our remand directed the Court of Appeals to re-examine its findings in light of the statutory presumption. We pointed the way by identifying certain of its findings that we considered to be at odds with the findings of the California Court of Appeal. We asked the Court of Appeals to apply the statutory presumption or explain why the presumption was not applicable in view of the factors listed in the statute. The Court of Appeals did neither. Accordingly, we again must remand. Again we note that "we are not to be understood as agreeing or disagreeing with the majority of the Court of Appeals on the merits of the issue of impermissibly suggestive identification procedures." 449 U.S., at 552, 101 S.Ct., at 772.11 11 The motion of respondent for leave to proceed in forma pauperis is granted. The petition for writ of certiorari is granted, the judgment of the Court of Appeals for the Ninth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. 12 So ordered. 13 Justice BRENNAN, with whom Justice MARSHALL joins, dissenting. 14 In my view, the opinion of the Court of Appeals for the Ninth Circuit not only accords with the views I expressed last Term, which, as the Court points out, ante, at 595, n. 6, did not prevail, but also with the principles expressed in the Court's opinion last Term and restated by the Court today. It is on this basis that I dissent from the Court's second, and in this instance summary,* vacation. 15 When this case was before us last Term, I expressed the view that it was unnecessary for the Court of Appeals to explain its failure to consider the restrictions of § 2254(d), because "the difference between the Court of Appeals for the Ninth Circuit and the California Court of Appeal was over the applicable legal standard, and not over the particular facts of the case," rendering § 2254(d) obviously inapplicable. Sumner v. Mata, 449 U.S. 539, 558-559, 101 S.Ct. 764, 774, 66 L.Ed.2d 722 (1981). The Court disagreed, holding that in all cases federal courts must apply § 2254(d) or explain why it was inapplicable: "No court reviewing the grant of an application for habeas corpus should be left to guess as to the habeas court's reasons for granting relief notwithstanding the provisions of § 2254(d)." 449 U.S., at 552, 101 S.Ct., at 772. But I thought then, and the Court today agrees, that § 2254(d) is inapplicable to the ultimate question whether pretrial identification procedures are "impermissibly suggestive," Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). Ante, at 597. 16 The Court's explicit recognition that § 2254(d) does not govern the ultimate question as to the constitutionality of the pretrial identification procedures used in this case renders all the more confounding the Court's present disposition. Following this Court's directive on remand, the Court of Appeals clarified the basis for its original opinion: Section 2254(d) was inapplicable because the federal court "substantially agree[d] with the 'historical' or 'basic' facts adduced by the California Court of Appeal," but disagreed with "the legal and constitutional significance of certain facts," and thus the "legal conclusion" of the state court. 649 F.2d 713, 716-717 (1981). 17 I can only interpret this second vacation as evincing either the suspicion that the Court of Appeals, despite its protestations to the contrary, actually relied on factual findings inconsistent with those of the state court or that the Court of Appeals failed to distinguish its ultimate conclusion from subsidiary questions of fact. The unfairness of such suspicion is manifest. There is no reason to think, borrowing from this Court's declaration to the Court of Appeals last Term, that, despite this Court's difference of opinion, the judges of the Ninth Circuit are "not doing their mortal best to discharge their oath of office." 449 U.S., at 549, 101 S.Ct., at 770. 18 There is no basis for disbelieving the Court of Appeals' assurance that it has accepted the factual findings of the California Court of Appeal and that it granted relief only because it concluded that the pretrial identification procedures employed in this case were, as a matter of law, unconstitutional. Accordingly, I dissent and would affirm the judgment of the Court of Appeals. 19 Justice STEVENS, dissenting. 20 Once again the Court's preoccupation with procedural niceties has needlessly complicated the disposition of a federal habeas corpus petition. Cf. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379. Lurking in the background of this case is the question whether the failure to conduct a lineup has any bearing on the validity of a photographic identification. The Court may one day confront that question. For the present, however, it is more concerned with the Court of Appeals' misunderstanding of the ill-defined mandate of Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722, and 28 U.S.C. § 2254(d). 21 We now seem to agree that § 2254(d) applies to a "basic, primary, or historical fact" and that it does not apply to a "mixed question of law and fact." The articulation of this proposition certainly is an improvement on the Court's opinion of last Term, which understandably confounded the Court of Appeals on remand. Judge Sneed in dissent read—incorrectly, it turns out—the Court's opinion to apply § 2254(d) to mixed questions of law and fact. The panel majority read—correctly, it turns out—the Court's opinion to apply § 2254(d) only to historical facts. The panel majority held that § 2254(d) simply was not implicated in this case because there was no conflict between its findings of historical facts and those of the California Court of Appeal. The disagreement today is whether that holding is correct. In my opinion, this question is more difficult than either the per curiam or Justice BRENNAN's dissent indicates.* Indeed, the difficulty of the analysis behooves this Court either to "poin[t] the way" in a more extensive and reasoned fashion or to rely upon the good faith and good sense of the federal courts in applying the rather straightforward principle of § 2254(d) even though in particular cases its application might be unclear. The Court does neither today. Instead, it merely delays, for the sake of a procedural nicety, either the habeas corpus relief to which the Court of Appeals has held the respondent is entitled or a consideration of the merits of the only significant question that the petitioner has raised. I respectfully dissent from the Court's summary disposition. 1 Section 2254(d) provides: "(d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit— "(1) that the merits of the factual dispute were not resolved in the State court hearing; "(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing; "(3) that the material facts were not adequately developed at the State court hearing; "(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding; "(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding; "(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or "(7) that the applicant was otherwise denied due process of law in the State court proceeding; "(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record: And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous." 2 Respondent argued: "All of the facts set forth in the opinion [of the Court of Appeals] are drawn from the record and do not contradict any finding of primary fact made by the California Court of Appeal." Brief for Respondent, O.T.1980, No. 79-1601, pp. 19-20. 3 Two other inmates—Salvadore Vargas and David Gallegos—were also convicted of taking part in the murder. 4 The California Court of Appeal summarized the pretrial procedures as follows: "Three inmate witnesses testified that they saw the stabbing take place. All three—Childress, Almengor, and Allen—identified all three defendants . . . . The witnesses were shown a number of photographs of Tehachapi inmates in an attempt to identify the slayers. Almengor was interviewed and shown photos on October 19, 1972, the day of the incident. He made a possible identification of appellant Vargas, but made possible misidentifications of the other two participants. On October 30, 1972, more recent photos were presented to Almengor and he identified all the appellants. On October 27, 1972, Allen was shown photographs but stated he could not make an identification because the photographs were old. On October 30, 1972, more photos were presented to Allen and he identified all three appellants. On that date Childress also selected all three appellants from photographs shown to him. "Appellants argue that the witnesses Almengor and Allen were housed in the same segregation unit with appellants, that they were aware that appellants were removed from the segregation unit to have their pictures taken and that this makes their identification inadmissible. But they make no showing, and the record supports none, that the witnesses were in fact influenced in their identification by this action of the investigating officers." App. to Pet. for Cert. C-4 to C-6. 5 The decision of the Court of Appeals for the Ninth Circuit differed not only with that of the California Court of Appeal on direct appeal but also with the decision of three levels of state courts in state habeas proceedings and with the decision of the Federal District Court in federal habeas proceedings. 6 In dissent Justice BRENNAN argued that there was no conflict between the facts as found by the state court and as found by the Court of Appeals. He argued that the California court's finding that the witnesses had an opportunity to view the killing was not in conflict with a finding by the Court of Appeals that the witnesses were "quite likely" distracted at the time of the killing. He argued further that the California court's finding that the descriptions given by the witnesses were "accurate" was not in conflict with a finding that these descriptions were not detailed. Finally, the dissent appears to have considered that the existence of influence by prison officials was not a question of fact but of law. 449 U.S., at 556, 101 S.Ct., at 773. It is obvious that a majority of the Court did not find this reasoning persuasive. On our remand, the Court of Appeals apparently adopted Justice BRENNAN's dissenting views. See 649 F.2d 713, 716 (C.A.9 1981). 7 "Lest the reviewing court 'be left to guess' as to our reasons for granting habeas relief notwithstanding the provisions of § 2254(d), we reiterate: As our original analysis indicates . . . we substantially agree with the 'historical' or 'basic' facts adduced by the California Court of Appeal Fifth Appellate District. . . . We disagree, however, with the application of the Simmons standard . . . to the totality of the circumstances of this case." Id., at 717. 8 Judge Sneed dissented from the Court of Appeals' original decision, and he dissented again "respectfully, and to some degree sorrowfully." Ibid. 9 Cf. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Neil v. Biggers, 409 U.S. 188, 193, n. 3, 93 S.Ct. 375, 379, n. 3, 34 L.Ed.2d 401 (1972). 10 In Neil v. Biggers, supra, at 199-200, 93 S.Ct., at 382, we noted that "the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Each of these "factors" requires a finding of historical fact as to which § 2254(d) applies. The ultimate conclusion as to whether the facts as found state a constitutional violation is a mixed question of law and fact as to which the statutory presumption does not apply. 11 Because we remand for failure to comply with § 2254(d), we do not reach the second question presented in the petition for certiorari as to whether the Court of Appeals applied the proper legal standard in determining that the pretrial identification procedures used in this case were constitutionally defective. * Although a case in which a lower court misunderstands the terms of our remand might in some instances be an appropriate candidate for summary reversal, in this case, where there is no unanimous agreement that the remand was not complied with, I would not reverse without plenary consideration. * The California Court of Appeal and the Court of Appeals for the Ninth Circuit Court worked from the same state trial court record. The state court made the rather brief findings "that there is no showing of influence by the investigating officers: that the witnesses had an adequate opportunity to view the crime; and that their descriptions are accurate." App. to Pet. for Cert. C-8. The federal court analyzed the evidence in greater detail. It found that although the fight among witnesses and the perpetrators of the crime "would have at least provided an opportunity for the witnesses to observe the perpetrators of the crime[,] . . . the violence accompanying the incident and the threat presented by the knife would have, quite likely, diverted the witnesses' attention"; that "the descriptions of the assailants were clearly not detailed descriptions"; and that "considerable pressure from both the prison officers and opposing prison factions had admittedly been brought to bear on both witnesses." Mata v. Sumner, 611 F.2d 754, 758-759 (1979). Putting aside the problem of separating findings of historical fact from answers to mixed questions of law and fact, it is mostly an ineffectual exercise to attempt to decide whether the two sets of findings are conflicting. The first and second of the three findings of the federal court seem to supplement, but not contradict, the roughly corresponding findings of the state court. The third does conflict with the state court's determination that there was "no showing of influence," but the reason for the conflict is fully explained by the federal court's reference to evidence in the record that the state court apparently overlooked or ignored. The Court of Appeals might have better complied with § 2254(d) by referring to this explanation. See § 2254(d)(8). In any event, since neither appellate court had the benefit of findings of fact by the judge who heard the evidence, it is a strange use of our scarce resources to review such trivial differences between two appellate courts' analyses of this trial record.

01

455 U.S. 586 102 S.Ct. 1300 71 L.Ed.2d 475 Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections, Petitionerv.Jose TORNA. No. 81-362. March 22, 1982. PER CURIAM. 1 Respondent is in custody pursuant to several felony convictions that were affirmed by the Third District Court of Appeal of Florida. Torna v. State, 358 So.2d 1109 (1978). The Florida Supreme Court dismissed an application for a writ of certiorari, on the ground that the application was not filed timely.1 362 So.2d 1057 (1978). A petition for rehearing and clarification was later denied. App. to Pet. for Cert. A-15. 2 Respondent thereafter filed a petition for habeas corpus in the United States District Court for the Southern District of Florida, contending that he had been denied his right to the effective assistance of counsel by the failure of his retained counsel to file the application for certiorari timely. The District Court denied the petition on the ground that the failure to file a timely application for certiorari did not render counsel's actions "so grossly deficient as to render the proceedings fundamentally unfair." Id., at A-22. In reaching this conclusion, the District Court noted that review by the Florida Supreme Court was discretionary; "[f]ailure of counsel to timely petition for certiorari to the Supreme Court, therefore, only prevented [respondent] from applying for further discretionary review." Id., at A-28. The Court of Appeals reversed. 649 F.2d 290 (CA5 1981).2 3 In Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), this Court held that a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals or applications for review in this Court. Respondent does not contest the finding of the District Court that he had no absolute right to appeal his convictions to the Florida Supreme Court.3 Since respondent had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel by his retained counsel's failure to file the application timely.4 The District Court was correct in dismissing the petition. 4 The motion of respondent for leave to proceed in forma pauperis is granted. The petition for writ of certiorari is granted, and the judgment of the Court of Appeals is therefore reversed. 5 It is so ordered. 6 Justice BRENNAN would set the case for oral argument. 7 Justice MARSHALL, dissenting. 8 The majority predicates its decision in this case on Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), which held that a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals. The majority reasons that because respondent had no constitutional right to counsel, his lawyer's failure to file a timely appeal did not violate his right to effective assistance of counsel. In my view, however, Ross v. Moffitt was improperly decided. See id., at 619-621, 94 S.Ct., at 2448-2449 (Douglas J., dissenting, joined by BRENNAN and MARSHALL, JJ.). I believe that a defendant does have a constitutional right to counsel to pursue discretionary state appeals. Particularly where a criminal conviction is challenged on constitutional grounds, permissive review in the highest state court may be the most meaningful review a conviction will receive. Moreover, where a defendant seeks discretionary review, the assistance of an attorney is vital. Because I disagree with the Court's position in Ross v. Moffitt, I disagree with its conclusion in this case also. 9 Even if I believed that Ross v. Moffitt were correctly decided, however, I would dissent from the majority's conclusion that habeas corpus provides no recourse to a criminal defendant who has been denied his right to seek discretionary review because of his attorney's error. Although respondent's Sixth Amendment right to effective assistance of counsel may not have been infringed, he was denied his right to due process. Respondent's counsel promised him that he would seek review in the Florida Supreme Court. Respondent reasonably relied on that promise. Counsel nonetheless failed to file a timely application.* As a result, respondent was deprived of his right to seek discretionary review by the State's highest court. As I suggested above, this loss is significant. I would hold that when a defendant can show that he reasonably relied on his attorney's promise to seek discretionary review, due process requires the State to consider his application, even when the application is untimely. To deny the right to seek discretionary review simply because of counsel's error is fundamentally unfair. Requiring the state courts to consider untimely applications when a defendant can show that he reasonably relied on his counsel will not impose a heavy burden. The State is not required to grant the application; it is simply barred from dismissing the application on the ground that it was not timely filed. 10 The majority argues that even if deprivation of the right to petition the Florida Supreme Court for review implicates a due process interest, there was no state action here. It reasons that the deprivation of this right was caused by respondent's counsel—a private retained attorney—and not by the State. Ante, at 588, n.4. In my view, however, there was sufficient state involvement to satisfy the requirements of the Fourteenth Amendment. The majority's position is inconsistent with Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). In that case, the Court rejected the petitioner's assertion that the failings of retained counsel at a criminal trial could not provide a basis for federal habeas corpus relief, because his conduct does not involve state action. It held that a state criminal trial, a proceeding initiated and conducted by the State itself, is an action of the State within the meaning of the Fourteenth Amendment. "When a State obtains a criminal conviction through such a trial, it is the State that unconstitutionally deprives the defendant of his liberty." Id., at 343, 100 S.Ct., at 1715. "[T]he State's conduct of a criminal trial itself implicates the State in the defendant's conviction." Id., at 344-345, 100 S.Ct., at 1716. 11 It is true that Cuyler v. Sullivan involved a challenge to the conduct of a private attorney during the trial, while this case involves a challenge to the post-trial conduct of a private attorney. However, post-trial proceedings are an integral part of the criminal process. In my view, the State is just as much implicated in those proceedings as in the trial itself. Here, for example, Florida was responsible for structuring the procedure by which criminal convictions are reviewed. In particular, it designed the rules governing the right to seek discretionary review, including the rule that applications are automatically rejected when filed out of time. Under the circumstances, I think it clear that the state-action requirement is satisfied. 1 "It appearing to the Court that the notice was not timely filed, it is ordered that the cause is hereby dismissed sua sponte, subject to reinstatement if timeliness is established on proper motion filed within fifteen days from the date of this order. See Fla.R.App.P. 9.120." App. to Pet. for Cert. A-13. 2 Citing its decision in Pressley v. Wainwright, 540 F.2d 818 (1976), cert. denied, 430 U.S. 987, 97 S.Ct. 1688, 52 L.Ed.2d 383 (1977), the court first noted that "the failure of court-appointed counsel to file a timely notice of certiorari in the Florida Supreme Court has been held to constitute ineffective assistance." 649 F.2d, at 291. On the basis of the recent decision in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the court then stated that "there is no distinction between court-appointed and privately retained counsel in the evaluation of a claim of ineffective assistance." 649 F.2d, at 292. Finally, the court quoted its recent decision in Perez v. Wainwright, 640 F.2d 596, 598 (1981), for the proposition that " 'when a lawyer . . . does not perform his promise to his client that an appeal will be taken, fairness requires that the deceived defendant be granted an out-of-time appeal.' " 649 F.2d, at 292. On the basis of these statements, the court reversed "the district court's denial of the writ of habeas corpus," ibid., and remanded the case to the District Court for further proceedings consistent with its opinion. 3 Like this Court, the Florida Supreme Court has a limited mandatory appellate jurisdiction. See Fla.Const., Art. V, § 3. Respondent has never contended, however, that he had a right of review under that jurisdiction. Thus, we need not determine the extent of the right to counsel in such a case. 4 Respondent was not denied due process of law by the fact that counsel deprived him of his right to petition the Florida Supreme Court for review. Such deprivation—even if implicating a due process interest—was caused by his counsel, and not by the State. Certainly, the actions of the Florida Supreme Court in dismissing an application for review that was not filed timely did not deprive respondent of due process of law. * Notice of the intent to apply for discretionary review was due in the office of the Clerk for the District Court of Appeal, Third District of Florida, on July 17, 1978. It was filed one day late, on July 18, 1978. According to respondent, a secretary in his attorney's office attempted to deliver the required papers on July 14, 1981. She became lost while traveling to the Clerk's office, and did not arrive until after it had closed. Because she did not realize that she could have placed the papers in a night depository box, she took them home and placed them in the mail. Record 29-30. To deny respondent the right to seek discretionary review, where he reasonably relied on his counsel's promise to apply for such review, and where counsel failed to comply with this promise only because of circumstances beyond his control, would be doubly unfair.

01

455 U.S. 603 102 S.Ct. 1309 71 L.Ed.2d 490 Lloyd FLETCHER, Superintendent, Bell County Forestry Campv.Eric WEIR. No. 81-1049. March 22, 1982. PER CURIAM. 1 In the course of a fight in a nightclub parking lot, Ronnie Buchanan pinned respondent Weir to the ground. Buchanan then jumped to his feet and shouted that he had been stabbed; he ultimately died from his stab wounds. Respondent immediately left the scene, and did not report the incident to the police. 2 At his trial for intentional murder, respondent took the stand in his own defense. He admitted stabbing Buchanan, but claimed that he acted in self-defense and that the stabbing was accidental. This in-court statement was the first occasion on which respondent offered an exculpatory version of the stabbing. The prosecutor cross-examined him as to why he had, when arrested, failed either to advance his exculpatory explanation to the arresting officers or to disclose the location of the knife he had used to stab Buchanan. Respondent was ultimately found guilty by a jury of first-degree manslaughter. The conviction was affirmed on appeal to the Supreme Court of Kentucky. 3 The United States District Court for the Western District of Kentucky then granted respondent a writ of habeas corpus, and the Court of Appeals, for the Sixth Circuit affirmed. 658 F.2d 1126 (1981). The Court of Appeals concluded that respondent was denied due process of law guaranteed by the Fourteenth Amendment when the prosecutor used his postarrest silence for impeachment purposes.1 Although it did not appear from the record that the arresting officers had immediately read respondent his Miranda warnings,2 the court concluded that a defendant cannot be impeached by use of his postarrest silence even if no Miranda warnings had been given. The court held that "it is inherently unfair to allow cross-examination concerning post-arrest silence," 658 F.2d, at 1130, and rejected the contention that our decision in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), applied only where the police had read Miranda warnings to a defendant. Because we think that the Court of Appeals gave an overly broad reading to our decision in Doyle v. Ohio, supra, we reverse its judgment. 4 One year prior to our decision in Doyle, we held in the exercise of our supervisory power over the federal courts that silence following the giving of Miranda warnings was ordinarily so ambiguous as to have little probative value. United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975). There we said: 5 "In light of the many alternative explanations for his pretrial silence, we do not think it sufficiently probative of an inconsistency with his in-court testimony to warrant admission of evidence thereof." Id., at 180, 95 S.Ct., at 2138. 6 The principles which evolved on the basis of decisional law dealing with appeals within the federal court system are not, of course, necessarily based on any constitutional principle. Where they are not, the States are free to follow or to disregard them so long as the state procedure as a whole remains consistent with due process of law. See Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). The year after our decision in Hale, we were called upon to decide an issue similar to that presented in Hale in the context of a state criminal proceeding. While recognizing the importance of cross-examination and of exposing fabricated defenses, we held in Doyle v. Ohio, supra, that because of the nature of Miranda warnings it would be a violation of due process to allow comment on the silence which the warnings may well have encouraged: 7 "[W]hile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." Id., at 618, 96 S.Ct., at 2245 (footnote omitted). 8 The significant difference between the present case and Doyle is that the record does not indicate that respondent Weir received any Miranda warnings during the period in which he remained silent immediately after his arrest. The majority of the Court of Appeals recognized the difference, but sought to extend Doyle to cover Weir's situation by stating that "[w]e think an arrest, by itself, is governmental action which implicitly induces a defendant to remain silent." 658 F.2d, at 1131. We think that this broadening of Doyle is unsupported by the reasoning of that case and contrary to our post-Doyle decisions. 9 In Jenkins v. Anderson, 447 U.S. 231, 239, 100 S.Ct. 2124, 2129, 65 L.Ed.2d 86 (1980), a case dealing with pre-arrest silence, we said: 10 "Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. 3A J. Wigmore, Evidence § 1042, p. 1056 (Chadbourn rev. 1970). Each jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative." 11 In Jenkins, as in other post-Doyle cases, we have consistently explained Doyle as a case where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him. In Roberts v. United States, 445 U.S. 552, 561, 100 S.Ct. 1358, 1365, 63 L.Ed.2d 622 (1980), we observed that the post-conviction, presentencing silence of the defendant did not resemble "postarrest silence that may be induced by the assurances contained in Miranda warnings." In Jenkins, we noted that the failure to speak involved in that case occurred before the defendant was taken into custody and was given his Miranda warnings, commenting that no governmental action induced the defendant to remain silent before his arrest. 447 U.S., at 239-240, 100 S.Ct., at 2130. Finally, in Anderson v. Charles, 447 U.S. 404, 407-408, 100 S.Ct. 2180, 2182, 65 L.Ed.2d 222 (1980), we explained that use of silence for impeachment was fundamentally unfair in Doyle because "Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him. . . . Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances." In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand. A State is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which postarrest silence may be deemed to impeach a criminal defendant's own testimony. 12 The motion of respondent for leave to proceed in forma pauperis is granted. 13 The petition for certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. 14 It is so ordered. 15 Justice BRENNAN would set the case for oral argument. 16 Justice MARSHALL dissents from the summary reversal of this case. 1 During cross-examination, the prosecutor also questioned respondent concerning his failure prior to his arrest to report the incident to the police and offer his exculpatory story. Relying on our decision in Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the Court of Appeals correctly held that there was no constitutional impropriety in the prosecutor's use of respondent's pre-arrest silence for impeachment purposes. 2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

01

455 U.S. 676 102 S.Ct. 1744 71 L.Ed.2d 546 AMERICAN MEDICAL ASSOCIATION, et al., petitioners,v.FEDERAL TRADE COMMISSION No. 80-1690 Supreme Court of the United States March 23, 1982 Rehearing Denied May 3, 1982. See 456 U.S. 966, 102 S.Ct. 2048. On writ of certiorari to the United States Court of Appeals for the Second Circuit. PER CURIAM. 1 The judgment is affirmed by an equally divided Court. 2 Justice BLACKMUN took no part in the consideration or decision of this case.

78

455 U.S. 624 102 S.Ct. 1322 71 L.Ed.2d 508 Michael P. LANE, Director, Illinois Department of Corrections, Petitionerv.Lawrence WILLIAMS and Oscar Southall. No. 80-1240. Argued Dec. 1, 1981. Decided March 23, 1982. Syllabus In 1975, both respondents pleaded guilty in unrelated Illinois state-court prosecutions for burglary, an offense punishable at that time by imprisonment for an indeterminate term of years and a mandatory 3-year parole term. Neither respondent, during his plea acceptance hearing, was informed that his negotiated sentence included the mandatory parole term. Each respondent completed his prison sentence, was released on parole, and was then reincarcerated for parole violation. While in custody, each filed petitions for federal habeas corpus, which were consolidated in the District Court, alleging that the failure of the trial courts to advise them of the mandatory parole requirement before accepting their guilty pleas deprived them of due process of law. The District Court found for respondents and, in accordance with the relief requested by them, merely ordered their release through "specific performance" of the plea bargains rather than nullifying the guilty pleas and allowing them to plead anew. After a remand from the Court of Appeals based on a question as to exhaustion of state remedies, the District Court ultimately again entered judgment for respondents. Since they had already been discharged from custody, the court simply entered an order "declaring void the mandatory parole term[s]." The Court of Appeals affirmed. Held: Respondents' claims for relief are moot. Assuming that the failure to advise respondents of the mandatory parole requirement rendered their guilty pleas void, they could have sought to have their convictions set aside and to plead anew, and this case would not then be moot. Such relief would free them from all consequences flowing from their convictions as well as subject them to reconviction with a possibly greater sentence, thus preserving a live controversy to determine whether a constitutional violation had occurred and whether respondents were entitled to the relief sought. However, by seeking "specific enforcement" of the plea agreement by elimination of the mandatory parole term from their sentences, respondents instead elected to attack only their sentences and to remedy the alleged constitutional violation by removing the consequence that gave rise to the constitutional harm. Since their parole terms have now expired, they are no longer subject to any direct restraint as a result of the parole terms, and the case is moot. Neither the doctrine that an attack on a criminal conviction is not rendered moot by the fact that the underlying sentence has expired, nor the doctrine that a case is not moot where it is "capable of repetition, yet evading review," is applicable here. Pp. 630-634. 633 F.2d 71, vacated. Michael B. Weinstein, Chicago, Ill., for petitioner. Martha A. Mills, Chicago, Ill., for respondents. Justice STEVENS delivered the opinion of the Court. 1 In 1975, respondents pleaded guilty in Illinois state court to a charge of burglary, an offense punishable at that time by imprisonment for an indeterminate term of years and a mandatory three-year parole term. We granted certiorari to consider whether the failure of the trial court to advise respondents of that mandatory parole requirement before accepting their guilty pleas deprived them of due process of law. We are unable to reach that question, however, because we find that respondents' claims for relief are moot. 2 * On March 11, 1975, respondent Lawrence Williams appeared in Illinois state court and pleaded guilty to a single count of burglary. Before accepting the guilty plea, the trial judge elicited Williams' understanding of the terms of a plea agreement, in which his attorney and the prosecutor had agreed that Williams would receive an indeterminate sentence of from one to two years in prison in exchange for pleading guilty. The judge informed Williams that he would impose the bargained sentence, and advised him of both the nature of the charge against him and the constitutional rights that he would waive by pleading guilty. After the prosecutor established a factual basis for the plea, Williams indicated that he understood his rights and wished to plead guilty. 3 At the time that Williams pleaded guilty, Illinois law required every indeterminate sentence for certain felonies, including burglary, to include a special parole term in addition to the term of imprisonment.1 During the plea acceptance hearing, neither the trial judge, the prosecutor, nor defense counsel informed Williams that his negotiated sentence included a mandatory parole term of three years. 4 Williams was discharged from prison on May 20, 1976, and released on parole. On March 3, 1977, he was arrested for reasons that do not appear in the record and, on March 16, 1977, he was returned to prison as a parole violator. While in custody, Williams filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois. He alleged that he "was not informed" that a mandatory parole term had attached to his sentence until two months before his discharge from prison and that "his present incarceration is therefore in violation of the Due Process Clause of the 14th Amendment to the U. S. Constitution." App. 12. Williams' petition did not ask the federal court to set aside his conviction and allow him to plead anew. It requested an order "freeing him from the present control" of the Warden and from "all future liability" under his original sentence.2 5 On January 4, 1978, the District Court found that Williams' guilty plea had been induced unfairly in violation of the Due Process Clause of the Fourteenth Amendment and ordered Williams released from custody. United States ex rel. Williams v. Morris, 447 F.Supp. 95 (1978). The court expressly "opted for specific performance" of the plea bargain "rather than nullification of the guilty plea." Id., at 101. The relief granted was precisely what Williams had requested. 6 Williams was not, however, immediately released from custody. The District Court entered a stay to give the State an opportunity to file a motion for reconsideration. Before that stay was lifted, Williams was released from prison on a special 6-month "supervisory release term." The District Court subsequently denied the State's motion to reconsider and the State appealed.3 While that appeal was pending, Williams' 6-month release term expired and he was released from the custody of the Illinois Department of Corrections. 7 The facts concerning respondent Southall are similar. Pursuant to a plea bargain with the prosecutor that was accepted in advance by an Illinois trial court, Southall pleaded guilty to a single charge of burglary and was sentenced to prison for a minimum period of one year and a maximum period not to exceed three years. The transcript of the plea acceptance proceeding contains no statement by the prosecutor, Southall's public defender, or the trial judge that the bargained and imposed sentence included the mandatory three-year parole term. Like respondent Williams, Southall completed his sentence, was released on parole, and later declared a parole violator.4 While reincarcerated, he filed a petition for habeas corpus in federal court, seeking his "immediate release." App. 65.5 His case was consolidated in the District Court with that of respondent Williams. 8 The District Court found "Southall's situation to be factually indistinguishable from Williams'." 447 F.Supp., at 102. The court thus granted Southall's petition for a writ of habeas corpus. The State filed an appeal from that decision, but discharged Southall in compliance with the decision of the District Court.6 9 The Court of Appeals reversed on the ground that respondents had failed to exhaust an available state remedy. 594 F.2d 614 (CA7 1979). Before reaching that decision, however, the court requested the parties to submit supplemental briefs on the issue of mootness. The court concluded that the cases were not moot. It noted that Southall's mandatory parole term extended beyond the date of its decision and thus could be reinstated. While Williams' parole term had expired, the court concluded that the controversy was still alive because "there remain collateral consequences which might have lingering effects since [Williams was] found guilty of [a] violatio[n] of the mandatory parole"; that violation "would remain upon [his] recor[d] with various possible adverse consequences." Id., at 615.7 Moreover, the court found the issue to be capable of repetition, yet evading review; "[i]t is obvious that because of the short terms often remaining in the mandatory parole terms that the same issue may be expected to be raised as to other petitioners similarly situated with doubtful expectations of resolution." Ibid. 10 After the Court of Appeals had rendered its decision, respondent Southall was discharged from the custody of the Illinois Department of Corrections.8 On remand, the District Court concluded that, as a result of an intervening decision of the Illinois Supreme Court, exhaustion of state remedies would be futile. 483 F.Supp. 775 (1980). The court again entered judgment for respondents; since they had already been released from custody, the court simply entered an order "declaring void the mandatory parole terms." App. 39. The Court of Appeals affirmed that decision, 633 F.2d 71 (1980), and we granted the State's petition for certiorari. Sub nom. Franzen v. Williams, 452 U.S. 914, 101 S.Ct. 3047, 69 L.Ed.2d 417. II 11 Respondents claim that their constitutional rights were violated when the trial court accepted their guilty pleas without informing them of the mandatory parole requirement. Assuming, for the sake of argument, that the court's failure to advise respondents of this consequence rendered their guilty pleas void,9 respondents could seek to remedy this error in two quite different ways. They might ask the District Court to set aside their convictions and give them an opportunity to plead anew; in that event, they might either plead not guilty and stand trial or they might try to negotiate a different plea bargain properly armed with the information that any sentence they received would include a special parole term. Alternatively, they could seek relief in the nature of "specific enforcement" of the plea agreement as they understood it; in that event, the elimination of the mandatory parole term from their sentences would remove any possible harmful consequence from the trial court's incomplete advice. 12 If respondents had sought the opportunity to plead anew, this case would not be moot. Such relief would free respondents from all consequences flowing from their convictions, as well as subject them to reconviction with a possibly greater sentence. Cf. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. Thus, a live controversy would remain to determine whether a constitutional violation in fact had occurred and whether respondents were entitled to the relief that they sought.10 13 Since respondents had completed their previously imposed sentences, however, they did not seek the opportunity to plead anew.11 Rather, they sought to remedy the alleged constitutional violation by removing the consequence that gave rise to the constitutional harm. In the course of their attack, that consequence expired of its own accord. Respondents are no longer subject to any direct restraint as a result of the parole term. They may not be imprisoned on the lesser showing needed to establish a parole violation than to prove a criminal offense. Their liberty or freedom of movement is not in any way curtailed by a parole term that has expired. 14 Since respondents elected only to attack their sentences, and since those sentences expired during the course of these proceedings, this case is moot. "Nullification of a conviction may have important benefits for a defendant . . . but urging in a habeas corpus proceeding the correction of a sentence already served is another matter." North Carolina v. Rice, 404 U.S. 244, 248, 92 S.Ct. 402, 405, 30 L.Ed.2d 413. 15 The Court of Appeals, relying on Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554, concluded that respondents' parole violations had sufficient "collateral effects" to warrant an exercise of federal habeas corpus relief. In Carafas we held that an attack on a criminal conviction was not rendered moot by the fact that the underlying sentence had expired. On the basis of New York law, we noted that "[i]n consequence of [the petitioner's] conviction, he cannot engage in certain businesses; he cannot serve as an official of a labor union for a specified period of time; he cannot vote in any election held in New York State; he cannot serve as a juror." Id., at 237, 88 S.Ct., at 1559 (footnotes omitted). These substantial civil penalties were sufficient to ensure that the litigant had " 'a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him.' " Ibid. (quoting Fiswick v. United States, 329 U.S. 211, 222, 67 S.Ct. 224, 230, 91 L.Ed. 196). In Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 1899, 20 L.Ed.2d 917, we stated that "a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction." 16 The doctrine of Carafas and Sibron is not applicable in this case. No civil disabilities such as those present in Carafas result from a finding that an individual has violated parole.12 At most, certain non-statutory consequences may occur; employment prospects, or the sentence imposed in a future criminal proceeding, could be affected. Cf. People v. Halterman, 45 Ill.App.3d 605, 608, 4 Ill.Dec. 271, 359 N.E.2d 1223, 1225 (1977).13 The discretionary decisions that are made by an employer or a sentencing judge, however, are not governed by the mere presence or absence of a recorded violation of parole; these decisions may take into consideration, and are more directly influenced by, the underlying conduct that formed the basis for the parole violation. Any disabilities that flow from whatever respondents did to evoke revocation of parole are not removed—or even affected—by a District Court order that simply recites that their parole terms are "void."14 17 Respondents have never attacked, on either substantive or procedural grounds, the finding that they violated the terms of their parole. Respondent Williams simply sought an order "freeing him from the present control" of the Warden and from "all future liability" under his original sentence; Southall sought his "immediate release" from custody. Through the mere passage of time, respondents have obtained all the relief that they sought. In these circumstances, no live controversy remains. 18 The Court of Appeals also held that this case was not moot because it was "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310. That doctrine, however, is applicable only when there is "a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350; Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353. Respondents are now acutely aware of the fact that a criminal sentence in Illinois will include a special parole term; any future guilty plea will not be open to the same constitutional attack. The possibility that other persons may litigate a similar claim does not save this case from mootness. 19 The judgment of the Court of Appeals is vacated. The case should be dismissed as moot. 20 It is so ordered. 21 Justice MARSHALL, with whom Justice BRENNAN and Justice BLACKMUN join, dissenting. 22 The majority announces today that this case is moot because, in its view, no collateral consequences flow from respondents' parole revocations, which were based on findings that respondents had violated the conditions of parole terms declared void by the courts below. I dissent from this holding because I believe it is contrary to this Court's precedents and because it ignores the fact that the State of Illinois does attach collateral consequences to parole revocations, a fact recognized both in the State's brief to the Court of Appeals on the issue of mootness and in state-court decisions in analogous cases. 23 * The majority recognizes that in habeas corpus challenges to criminal convictions, the case "is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction." Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 1899, 20 L.Ed.2d 917 (1968). This Court has consistently refused to canvass state law to ascertain "the actual existence of specific collateral consequences," and has presumed that such consequences exist. Id., at 55, 88 S.Ct. at 1898 (discussing United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), and Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957)). See also Carafas v. LaVallee, 391 U.S. 234, 237-238, 88 S.Ct. 1556, 1559, 20 L.Ed.2d 554 (1968). 24 Today, the majority finds the Carafas doctrine inapplicable, arguing that because respondents did not seek to set aside their convictions, their situation is analogous to that of a defendant who seeks habeas corpus review to correct a sentence already served. See North Carolina v. Rice, 404 U.S. 244, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) (per curiam ). Had respondents served the allegedly void mandatory parole term without incident, I might agree that North Carolina v. Rice controls and join the majority's conclusion that the consequence of the constitutional violation "expired of its own accord." Ante, at 631. Here, however, respondents were found to have violated the conditions of their parole. Therefore, unlike the situation in North Carolina v. Rice, respondents seek more than a mere reduction in sentence after the sentence has been completed: they seek to have the parole term declared void, or expunged, in order to avoid the future consequences that attach to parole violations. If collateral consequences do attach to parole violations, both the State and respondents have a live interest in this Court's review of the lower courts' holdings that the alleged constitutional violations rendered the guilty pleas void and that respondents were entitled to specific performance of the pleas, in the form of a declaration that the mandatory parole terms were void and should be expunged. 25 The existence of a live controversy in this case turns on whether collateral consequences attach to parole violations. Because this determination involves a difficult question of state law, I believe that the doctrine of Sibron and Carafas should be applied. This doctrine avoids placing a federal court in the awkward position of determining questions of state law not directly before it. By presuming the existence of collateral consequences, federal courts are not required to predict the manner in which a State may use convictions or parole violations in future proceedings. An erroneous determination that collateral consequences do not attach not only injures the individuals challenging the constitutionality of the guilty pleas, but also hinders the State's ability to use these violations in future proceedings. Today's opinion is an unfortunate example of such an erroneous interpretation. II 26 The majority's decision is apparently based on a cursory examination of Illinois statutes. Finding no statutory civil disabilities, the majority glibly dismisses nonstatutory consequences as "discretionary decisions" that would remain whether or not the parole terms were declared void or expunged. Ante, at 632-633.1 This reasoning has no basis in Illinois law and appears to derive from nothing more than judicial intuition. 27 Several collateral consequences attach to parole violations under Illinois law.2 First, a sentencing judge may consider parole violations in aggravation of sentence. The majority makes the unwarranted assumption that declaring void the parole term upon which a violation is based has no effect because a sentencing judge would consider the conduct underlying the violation, and not the violation itself, in deciding whether to enhance a sentence. However, as the majority recognizes, there is no way for this Court to determine the basis for respondents' parole revocation. Under Illinois law, the Prisoner Review Board is given substantial discretion in setting conditions of parole. See Ill.Rev.Stat., ch. 38, ¶ 1003-3-7 (Supp.1980).3 Conditions of parole may prohibit conduct that is otherwise innocent and may affirmatively require the parolee to engage in specified work or rehabilitation programs. Parole may be revoked upon a finding that the parolee has violated any of these parole conditions. See Ill.Rev.Stat., ch. 38, ¶ 1003-3-9 (Supp.1980); Illinois Prisoner Review Board, Rules Governing Parole 9-10, 13-16 (1979), 3 Ill. Register 144, 162-166 (1979). Therefore, conduct giving rise to a parole violation may be completely innocuous but for the fact that it was prohibited or required as a condition of parole, and it may be entirely irrelevant to a sentencing decision once the parole term is declared void. 28 Moreover, it is not clear under Illinois law whether a sentencing judge would consider the conduct underlying a parole violation, even if the conduct is not otherwise innocent, where the parole term itself is declared void. In a similar context, the Illinois appellate courts have held that trial courts may not consider a reversed conviction in aggravation of sentence, even where the court, in remanding for a new trial, noted that the evidence was sufficient to support the verdict beyond a reasonable doubt and the matter was never retried. See, e.g., People v. Chellew, 20 Ill.App.3d 963, 313 N.E.2d 284 (1974). Cf. People v. Wunnenberg, 87 Ill.App.3d 32, 34, 42 Ill.Dec. 606, 608, 409 N.E.2d 101, 103 (1980). The Illinois courts have also held that review of probation revocation is not rendered moot merely because the defendant has served his entire sentence. See People v. Halterman, 45 Ill.App.3d 605, 608, 4 Ill.Dec. 271, 274, 359 N.E.2d 1223, 1225 (1977) (challenge to probation revocation not moot because "the fact that the defendant has had his probation revoked might be submitted to another judge for his consideration in sentencing the defendant if he has the misfortune of again being convicted of some crime"). These cases do not conclusively demonstrate that a judge would not consider the conduct underlying the violation of a void parole term in aggravation of sentence. However, they cast serious doubt on the validity of the majority's assumption to the contrary. Furthermore, the State argued to the Court of Appeals that the case was not moot because the State "is deeply interested in whether or not it can use the parole violation status of [respondents] for sentencing purposes should they ever again come into contact with the criminal justice system." Additional Memorandum for Appellants in Nos. 78-1321, 78-1322, 78-1323, 78-1380 (CA7), p. 5 (Mem. to Court of Appeals). This argument at least implies that the State would not use this status for sentencing purposes after a court had declared the parole terms void. 29 Second, the majority completely overlooks an important collateral consequence that attaches to parole violations should the respondents ever have the misfortune of returning to prison. In rules promulgated by the Prisoner Review Board pursuant to Ill.Rev.Stat., ch. 38, &Par; 1003-3-1, 1003-3-2 (Supp.1980), the State of Illinois has set forth fairly specific criteria upon which parole may be denied. See Illinois Prisoner Review Board, Rules Governing Parole (1979), 3 Ill. Register 144-169 (1979). The Rules provide in relevant part: 30 "V. BASIS FOR DENYING PAROLE 31 In accordance with statute, the Board shall not parole a candidate if it determines that: 32 "A. There is a substantial risk that the candidate will not conform to reasonable conditions of parole based on one or more of the following factors: 33 "1. Existence of prior adult felony convictions (mitigating as well as aggravating factors to be considered). 34 "2. An apparent pattern of aggressive or assaultive behavior (misdemeanor offenses also considered). 35 " 3. Prior adult parole or probation violations within five years prior to the present offense. 36 "4. Refusal to be supervised on parole. 37 "5. No means of financial support or no place of residence. (Continuance not to exceed six months to seek resolution of problem.) 38 "6. A psychiatric examination determines the candidate is not likely to conform." Prisoner Review Board, Illinois Rules Governing Parole 6 (1979), 3 Ill. Register 153 (1979) (emphasis added). 39 Under these rules, parole may be denied simply on the basis of a prior parole violation; the conduct underlying the parole violation is apparently irrelevant unless it falls within one of the other criteria listed in that section. We have no reason to assume that the conduct underlying respondents' violations would fall within one of the other factors, or that the Prisoner Review Board would deny parole based on a parole violation notwithstanding the fact that the parole term had been declared void. In fact, the State argued to the Court of Appeals that the case was not moot because respondents "still have a substantial stake in ensuring that their parole terms are, indeed, expunged," because the parole violations would be burdensome if respondents were ever again considered for parole. Mem. to Court of Appeals 5. See also United States ex rel. Howell v. Wolff, No. 78 C 951 (ND Ill. Aug. 9, 1978) (unpublished opinion of Judge Leighton, reprinted in App. to Mem. to Court of Appeals) (finding case not moot due to potential burden on future parole decision from parole-violation status). III 40 Today's decision, in which the majority undertakes a cursory and misleading examination of state law, starkly demonstrates the wisdom of applying the doctrine of Carafas and Sibron to the determination whether a State attaches collateral consequences to parole violations. I would apply that doctrine, presume the existence of collateral consequences, and reach the merits of this case. Even if the doctrine of Carafas and Sibron does not apply, an examination of state law reveals that the majority is wrong in concluding that actual collateral consequences do not attach under state law; there are sufficient collateral consequences flowing from parole-violation status that both the State and the respondents have a live interest in this Court's resolution of the constitutional question. Therefore, I dissent from the majority's conclusion that this case is moot. 1 See Ill.Rev.Stat., ch. 38, ¶ 1005-8-1 (1975). The mandatory parole requirement was first imposed by the Illinois Legislature in 1972. 1972 Ill.Laws, P.A. 77-2097, § 5-8-1. At the time that Williams pleaded guilty, the mandatory parole term for the offense of burglary was three years; however, Illinois law also provided that "[t]he Parole and Pardon Board may enter an order releasing and discharging a parolee from parole and his commitment to the Department when it determines that he is likely to remain at liberty without committing another offense." § 3-3-8 (current version Ill.Rev.Stat., ch. 38, ¶ 1003-3-8) (Supp.1980)). In 1978 the parole requirement was amended by the Illinois Legislature and reduced, for the offense in question, to two years. 1977 Ill.Laws, P.A. 80-1099, § 3. In People v. Wills, 61 Ill.2d 105, 330 N.E.2d 505 (1975), cert. denied, 423 U.S. 999, 96 S.Ct. 430, 46 L.Ed.2d 374, the Illinois Supreme Court held that the mandatory parole term is one of the consequences of a guilty plea that must be explained to the defendant before such a plea may be accepted. The court also held, however, that its decision should not be applied retroactively; thus, during the period between January 1, 1973, when the mandatory parole requirement became effective, and May 19, 1975, when Wills was decided, there was no state-law requirement that a defendant be advised of the parole requirement before pleading guilty. 2 The petition also requested "[a]ny further relief that [the] Court deems appropriate and just in this [m]atter." App. 13. 3 Although the denial of the motion to reconsider is dated January 27, 1978, it was not entered until February 2, 1978. Williams was released on February 1, 1978. 4 Southall began serving his sentence on October 8, 1974, the date of his arrest. He was released on parole on September 22, 1975. On October 8, 1976—well within the 3-year period that Southall was told he could be subject to the control of the Illinois Department of Corrections—he was declared a parole violator "as of November 1, 1975." The record does not disclose the nature of this parole violation. 5 Southall did not allege that he did not know of the parole requirement at the time he pleaded guilty. Southall simply alleged that "[he] was not previously aware that [he] would be detained on violation of mandatory parole." Id., at 65. 6 The District Court's original order commanding Southall's release was stayed until further order of the court, to permit the State to file the motion for reconsideration. Although the record does not contain an order terminating the stay, the Court of Appeals subsequently indicated that Southall had been released pursuant to the District Court's order. 594 F.2d 614, 615 (CA7 1979). 7 The court did not identify these collateral effects or adverse consequences. It found the situation "similar in principle," however, to that considered in Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554. 8 In subsequent proceedings in the District Court, some uncertainty existed concerning the current effect of the parole term on Southall, since he had been returned to custody after committing a new offense. In its brief in this Court, however, the State declares that, as to the sentence at issue here, Southall was "totally discharged from the custody of the Illinois Department of Corrections as of October 24, 1979." Brief for Petitioner 10. Our holding that his case is moot is based on the understanding that the State may not subject Southall to any further detention or restraint as a result of the mandatory parole term at issue in this case. 9 Cf. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427; Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108. We do not decide whether, to establish such a constitutional violation, respondents must claim that they in fact did not know of the parole requirement at the time they pleaded guilty or that they would not have pleaded guilty had they known of this consequence. 10 Since this relief would free respondents from collateral, as well as direct, consequences of a criminal conviction, the case would not be moot even if the previous sentence had been served and the State indicated that it would not seek a retrial. Carafas v. LaVallee, supra. 11 Williams' general prayer for "[a]ny further relief that [the] Court deems appropriate and just in this [m]atter"—or the fact that the District Court may have inherent power to fashion an appropriate remedy for the violation of a constitutional right—is not equivalent to a specific request by respondents to set aside their convictions. We need not decide here whether respondents would ever be entitled to relief other than the opportunity to plead anew. Unless respondents requested such relief, however, it surely would not be appropriate to enter an order that would subject them to the risk of retrial after their sentences had been served. 12 The State of Illinois has chosen to define narrowly the collateral civil penalties that attach even to a conviction of a criminal offense; generally, collateral consequences do not extend beyond the completion of the sentence or the release from imprisonment. See Ill.Rev.Stat., ch. 38, ¶ 1005-5-5 (Supp.1980). 13 In his dissenting opinion, Justice MARSHALL argues that this case is not moot because a possibility exists under state law that respondents' parole violations may be considered in a subsequent parole determination. This "collateral consequence" is insufficient to bring this case within the doctrine of Carafas. That case concerned existing civil disabilities; as a result of the petitioner's conviction, he was presently barred from holding certain offices, voting in state elections, and serving as a juror. This case involves no such disability. The parole violations that remain a part of respondents' records cannot affect a subsequent parole determination unless respondents again violate state law, are returned to prison, and become eligible for parole. Respondents themselves are able—and indeed required by law—to prevent such a possibility from occurring. Moreover, the existence of a prior parole violation does not render an individual ineligible for parole under Illinois law. It is simply one factor, among many, that may be considered by the parole authority in determining whether there is a substantial risk that the parole candidate will not conform to reasonable conditions of parole. Collateral review of a final judgment is not an endeavor to be undertaken lightly. It is not warranted absent a showing that the complainant suffers actual harm from the judgment that he seeks to avoid. 14 The District Court's order did not require the Warden to expunge or make any change in any portion of respondents' records. Nor have respondents ever requested such relief. 1 The majority makes a cryptic reference to the fact that respondents did not request the District Court to expunge or make any change in their records. Ante, at 1328, n. 14. The failure to make this request is easily explained on several grounds and is irrelevant to the question whether this case is moot. The respondents did request that the District Court "expunge" the parole terms on which the violations were based. This "expungement" would have the effect of removing respondents' parole-violation status and would relieve respondents of the collateral consequences flowing from this status. Any further "expungement" that respondents might obtain should be requested in future state proceedings. The State of Illinois has a very limited expungement procedure that would not cover the expungement to which the majority apparently refers. See Ill.Rev.Stat., ch. 38, ¶ 206-5 (Supp.1980) (person, not convicted of any previous criminal offense, who is acquitted or released without conviction may petition the court for expungement of arrest records). Furthermore, the State of Illinois has no procedure to expunge convictions that are later reversed or vacated on appeal, but this fact, or the failure of a habeas petitioner to request that a federal district court accord him relief that is unavailable under state law, would hardly render moot a habeas petition to set aside a conviction unconstitutionally obtained. The Illinois courts may not consider a reversed conviction in aggravation of sentence, despite the fact that the records of this conviction have not been officially "expunged." See, e.g., People v. Wunnenberg, 87 Ill.App.3d 32, 42 Ill.Dec. 606, 409 N.E.2d 101 (1980); People v. Chellew, 20 Ill.App.3d 963, 313 N.E.2d 284 (1974). 2 Of course, the existence of express statutory civil disabilities is not a prerequisite to holding that a habeas challenge to a criminal conviction is not moot. See, e.g., Sibron v. New York, 302 U.S. 40, 54-57, 88 S.Ct. 1889, 1898-99, 20 L.Ed.2d 917 (1968) (discussing Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196 (1946); United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954); Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957)). 3 Paragraph 1003-3-7 provides: "(a) The conditions of parole or mandatory supervised release shall be such as the Prisoner Review Board deems necessary to assist the subject in leading a law-abiding life. The conditions of every parole and mandatory supervised release are that the subject: "(1) not violate any criminal statute . . . ; and "(2) refrain from possessing a firearm or other dangerous weapon. "(b) The Board may in addition to other conditions require that the subject: "(1) work or pursue a course of study or vocational training; "(2) undergo medical or psychiatric treatment, or treatment for drug addiction or alcoholism; "(3) attend or reside in a facility established for the instruction or residence of persons on probation or parole; "(4) support his dependents; "(5) report to an agent of the Department of Corrections; "(6) permit the agent to visit him at his home or elsewhere to the extent necessary to discharge his duties . . ." (emphasis added). See also Illinois Prisoner Review Board, Rules Governing Parole 9-12 (1979), 3 Ill. Register 158-160 (1979).

89

455 U.S. 642 102 S.Ct. 1332 71 L.Ed.2d 522 Charles Ronald McELROY, Petitionerv.UNITED STATES. No. 80-6680. Argued Jan. 12, 1982. Decided March 23, 1982. Rehearing Denied May 3, 1982. See 456 U.S. 965, 102 S.Ct. 2047. Syllabus Petitioner was convicted in Federal District Court of two counts of violating 18 U.S.C. § 2314, which prohibits the transportation "in interstate or foreign commerce [of] any . . . forged . . . securities . . ., knowing the same to have been . . . forged." The proof at trial showed that blank checks had been stolen in Ohio and that several months later petitioner used two of the checks, on which signatures had been forged, to pay for a car and for a boat and trailer purchased in separate transactions in Pennsylvania. The trial court instructed the jury that in order to find petitioner guilty, it must find that he transported the checks in a forged condition in "interstate commerce," and that such transportation could take place entirely within Pennsylvania if it was a "continuation of the movement that began out of state." The court rejected petitioner's objection to the instruction on the asserted ground that under § 2314 the Government had the burden of proving that the checks had been forged in Ohio before being transported across state lines to Pennsylvania. The Court of Appeals affirmed petitioner's convictions. Held: Section 2314 does not require proof that the securities were forged before being taken across state lines, and thus the trial court's jury instructions were correct. Pp. 647-659. (a) Use of the past tense "forged" in § 2314 does not establish Congress' intent to prohibit only the transportation of securities that were forged before crossing state lines. Congress' use of the phrase "interstate commerce" rather than "state borders," as well as the legislative history of the phrase, shows that Congress intended it to be as broad in scope as this Court's decisions holding that interstate commerce begins well before state lines are crossed and ends only when movement of the item in question has ceased in the destination State. Moreover, § 2314's purpose of aiding the States in detection and punishment of criminals who evade state authorities by using channels of interstate commerce supports the conclusion that Congress could not have intended to require federal prosecutors to prove that the securities had been forged before crossing state lines. Pp. 648-656. (b) The language of § 2314 does not raise significant questions of ambiguity sufficient to warrant application of the principle of lenity and construction in petitioner's favor. United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488, distinguished. Pp. 657-658. 644 F.2d 274, affirmed. Thomas S. White, Pittsburgh, Pa., for petitioner. Carter G. Phillips, Dept. of Justice, Washington, D. C., for respondent. Justice O'CONNOR delivered the opinion of the Court. 1 The petitioner was convicted of two counts of transporting a forged security in interstate commerce in violation of 18 U.S.C. § 2314. He challenges his conviction on the ground that the statute requires proof, concededly lacking at trial, that the securities had been forged before being taken across state lines. Because of a conflict among the Circuits on this issue of statutory construction, we granted certiorari. 454 U.S. 815, 102 S.Ct. 91, 70 L.Ed.2d 83 (1981). For the reasons stated below, we affirm the petitioner's conviction. 2 * Petitioner Charles McElroy was indicted by a federal grand jury on three counts. Counts 1 and 3 charged that on two occasions the petitioner transported in interstate commerce falsely made and forged securities from Ohio to Pennsylvania in violation of 18 U.S.C. § 2314, the National Stolen Property Act.1 Count 2 charged McElroy with transporting a stolen car in interstate commerce from Pennsylvania to Ohio in violation of 18 U.S.C. § 2312.2 3 According to the proof at trial, several blank checks3 were stolen from Local 125 of the Laborers' International Union in Youngstown, Ohio, in late March or early April 1977. After the Union discovered the theft, it closed the account on which the checks were drawn. Seventeen months later, in October 1978, the petitioner ordered a used Corvette from the Don Allen Chevrolet Agency in Pittsburgh, Pa., for $6,706. Using the name "William Jones," the petitioner told the salesman that he lived in Warrenville Heights, Ohio, but worked in the Pittsburgh area. The petitioner returned the next day and paid for the car with one of the stolen Union checks, on which a signature had been forged. After learning the following day from the drawee bank in Ohio that the account had been closed, the dealership made no effort to negotiate the check. This transaction formed the basis for count 1 (transportation of a forged check in interstate commerce) and count 2 (transportation of a stolen vehicle, the Corvette, in interstate commerce) of the indictment. 4 In December 1978, the petitioner sought to purchase a boat and trailer from the Rini Marine Sales Co. in Beaver Falls, Pa. Adhering to his previously successful scheme, he used the fictitious name "William Jones" and gave an Ohio address for his residence. One week after his initial inquiry he paid for a boat and trailer with one of the stolen Union checks, on which a signature had been forged. Too late, Philip Rini, the owner of Rini Marine Sales, became suspicious and telephoned the Youngstown, Ohio, bank only to learn that the check had been stolen and the signature forged. He, too, abandoned hope of negotiating the check, and turned to the Federal Bureau of Investigation for help. Count 3 arose from this transaction. 5 At the conclusion of the Government's case, the petitioner moved for a judgment of acquittal on all three counts on the ground that the Government had not submitted sufficient evidence for the case to go to the jury. The petitioner contended that he was entitled to an acquittal on count 2 because the Government failed to submit any evidence showing that the petitioner had transported the Corvette from Pennsylvania to Ohio, and on counts 1 and 3 because the Government had not adduced any evidence showing that the petitioner had caused the stolen checks to be brought through interstate commerce into Pennsylvania. The trial court denied these motions.4 6 After the petitioner rested,5 the trial court instructed the jury that in order to find the petitioner guilty on counts 1 and 3, it must find that he transported the check in a forged condition in "interstate commerce," and that such transportation could take place entirely within the State of Pennsylvania if it was a "continuation of the movement that began out of state." Tr. 164A.6 The petitioner unsuccessfully objected to this instruction, contending that under § 2314 the Government had the burden of proving that the check was forged in Ohio before it was transported across the state line to Pennsylvania. Tr. 92A. The petitioner was convicted on all three counts, and sentenced to serve seven years on each of counts 1 and 3 and five years on count 2, the sentences on all three counts to run concurrently. 7 The Court of Appeals, sitting en banc, vacated the judgment on count 2, holding that the Government had presented insufficient evidence to sustain a conviction.7 644 F.2d 274 (CA3 1981) (en banc). The court affirmed the judgment on counts 1 and 3, however, holding that the Government had presented sufficient evidence to sustain the convictions, and that the trial judge correctly had instructed the jury that the Government need not prove that the stolen checks had been forged before crossing state lines. "It is immaterial whether the signatures were forged in Ohio or in Pennsylvania. If at any point in the interstate movement the check was in a forged condition, the statute was satisfied." Id., at 279. All but one judge agreed with the majority's construction of the phrase "interstate commerce" as used in § 2314.8 II 8 The question presented by this case is one of statutory construction.9 The petitioner claims that the language and legislative history of § 2314 demonstrate congressional intent to limit the reach of that provision to those persons who transport forged securities across state lines. As a fallback position, the petitioner contends that § 2314's use of the expression "interstate commerce" is sufficiently ambiguous to require this Court to apply the principle of lenity and construe the provision in the petitioner's favor.10 9 Petitioner bases his initial argument on Congress' use of the past tense "forged" in § 2314, from which he urges us to infer that Congress intended to prohibit only the transportation of securities that were forged before entering the stream of interstate commerce, that is before crossing state lines. Fundamental to the petitioner's argument is the unarticulated assumption that "interstate commerce," as used in the section, does not continue after the security has crossed the state border. However, if subsequent movement of the check in the destination State constitutes interstate commerce, then a forgery of the check in the course of that movement involves transportation of a forged security in interstate commerce in violation of § 2314. Thus, the validity of the petitioner's argument turns on whether the statutory phrase "interstate commerce" comprehends movement of a forged security within the destination State. 10 The paragraph of § 2314 under which the petitioner was convicted prohibits the "transport[ation] in interstate or foreign commerce [of] any . . . forged . . . securities . . ., knowing the same to have been . . . forged." Title 18 U.S.C. § 10 provides that the "term 'interstate commerce,' as used in this title, includes commerce between one State . . . and another State." On their face, these two provisions are not limited to unlawful activities that occur while crossing state borders, but seemingly have a broader reach. In particular, the language of § 10 suggests that crossing state lines is not the sole manifestation of "interstate commerce."11 11 The origin of the "interstate commerce" element of § 2314 was the National Motor Vehicle Theft Act (Dyer Act), 41 Stat. 324,12 which was enacted in 1919 to provide "severe punishment of those guilty of the stealing of automobiles in interstate or foreign commerce." H.R.Rep.No.312, 66th Cong., 1st Sess., 1 (1919). See S.Rep.No.202, 66th Cong., 1st Sess., 1 (1919) (describing the bill as designed to "punish the transportation of stolen motor vehicles in interstate or foreign commerce"). Representative Dyer, the sponsor of the bill that was enacted, defended Congress' authority to enact the proposed law, noting that the courts had upheld a variety of regulatory statutes enacted under the Commerce Clause, including a criminal statute declaring unlawful the "[l]arceny of goods from railroad cars being transported in interstate commerce." 58 Cong.Rec. 5472 (1919).13 In response to a question from Representative Anderson concerning possible differences in the meaning of "interstate commerce" in §§ 2 and 4 of the Act, Representative Dyer replied: 12 "[I]f there is any difference there, which I do not see, the matter would be construed by the Supreme Court, which has passed many times upon what is meant by interstate and foreign commerce." Ibid.14 13 Plainly, Representative Dyer, the chief sponsor of the bill, believed that the statutory meaning of "interstate commerce" could be found in previous Supreme Court decisions using the phrase to define the scope of congressional authority under the Commerce Clause. See also H.R.Rep.No.312, 66th Cong., 1st Sess., 3-4 (1919) (justifying Congress' authority to enact the Dyer Act by reference to this Court's decisions holding that Congress has plenary power under the Commerce Clause to regulate interstate commerce). 14 Although the House Report accompanying the bill, as well as several Members of Congress during the debates, stated that the Act would prevent the transportation of stolen automobiles across state lines,15 Congress' use of the more general phrase "interstate commerce" and its reliance on this Court's constitutional decisions defining the scope of "interstate commerce" indicate that Congress intended the statutory phrase to be as broad as this Court had used that phrase in Commerce Clause decisions before 1919.16 In those decisions, this Court had made clear that interstate commerce begins well before state lines are crossed, and ends only when movement of the item in question has ceased in the destination State.17 We conclude, therefore, that in § 2314 Congress intended to proscribe the transportation of a forged security at any and all times during the course of its movement in interstate commerce, and that the stream of interstate commerce may continue after a state border has been crossed. Consequently, the trial judge in this case correctly instructed the jury that McElroy's transportation of the forged check within Pennsylvania would violate § 2314 if the jury found that movement to be a "continuation of the movement that began out of state." Tr. 164A.18 15 Moreover, the purpose underlying § 2314 leads us to conclude that Congress did not intend to require federal prosecutors to prove that the securities had been forged before crossing state lines. In United States v. Sheridan, 329 U.S. 379, 384, 67 S.Ct. 332, 335, 91 L.Ed. 359 (1946), this Court observed that in § 2314 Congress "contemplated coming to the aid of the states in detecting and punishing criminals whose offenses are complete under state law, but who utilize the channels of interstate commerce to make a successful getaway and thus make the state's detecting and punitive processes impotent" (footnote omitted). Given this broad purpose, we find it difficult to believe, absent some indication in the statute itself or the legislative history, that Congress would have undercut sharply that purpose by hobbling federal prosecutors in their effort to combat crime in interstate commerce. Under the petitioner's proposed construction, a patient forger easily could evade the reach of federal law, yet operate in the channels of interstate commerce.19 As the Government points out in its brief, moreover, the petitioner's construction produces the anomalous result that no federal crime would have been committed in this case until the victims returned the forged checks to the out-of-state drawee bank for payment. Brief for United States 18, n. 1120 While Congress could have written the statute to produce this result, there is no basis for us to adopt such a limited reading.21 B 16 The petitioner argues alternatively that even if a reading of § 2314 does not clearly support his interpretation, the provision is ambiguous and the ambiguity should be resolved by reading the provision narrowly to require the checks to have been forged before crossing the state line. For support, the petitioner cites United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), where this Court considered a challenge to a conviction under 18 U.S.C. App. § 1202(a), which prohibits a convicted felon from "receiv[ing], possess[ing], or transport[ing] in commerce or affecting commerce . . . any firearm." The issue framed by the Court was whether "in commerce or affecting commerce" modified "possesses" as well as "transports," since the respondent, a convicted felon, had been charged with possession of a shotgun, but the Government had made no effort to show that he had possessed the firearm "in commerce or affecting commerce." The Court found both the language of the provision and its legislative history ambiguous on this question, and decided on two grounds to read the statute narrowly, that is, to read "in commerce or affecting commerce" as modifying "possesses" as well as "transports." The Court reasoned that ambiguity concerning the reach of a criminal statute should be resolved by reading the statute narrowly in order to encourage Congress to speak clearly, thus giving the populace "fair warning" of the line between criminal and lawful activity, and in order to have the Legislature, not the courts, define criminal activity. Id., at 347-348, 92 S.Ct. at 522-523. Also, absent a clear statement of purpose from Congress, the Court was unwilling to read a federal criminal statute in a way that would encroach on a traditional area of state criminal jurisdiction. 17 The present case, however, does not raise significant questions of ambiguity, for the statutory language and legislative history of the Dyer Act indicate that Congress defined the term "interstate commerce" more broadly than the petitioner contends. We hold that Congress intended to use the term "interstate commerce" as this Court had been using it in Commerce Clause cases before 1919. As we observed in United States v. Bramblett, 348 U.S. 503, 509-510, 75 S.Ct. 504, 508, 99 L.Ed. 594 (1955), although "criminal statutes are to be construed strictly . . . this does not mean that every criminal statute must be given the narrowest possible meaning in complete disregard of the purpose of the legislature" (footnote omitted).22 III 18 Through § 2314, Congress has sought to aid the States in their detection and punishment of criminals who evade state authorities by using the channels of interstate commerce. Based on this congressional purpose, the trial judge in the present case correctly instructed the jury that they could find the petitioner guilty of violating § 2314 if they found that the forgeries occurred during the course of interstate commerce, which includes a "continuation of a movement that began out of state," even though movement of the forged checks was restricted to one State. Accordingly, we affirm the judgment of the court below. 19 So ordered. 20 Justice STEVENS, dissenting. 21 The words "transportation in interstate or foreign commerce" appear in a host of federal criminal statutes.1 These statutes prohibit the interstate transportation of stolen motor vehicles, forged checks, prostitutes, explosives, obscene materials, kidnap victims, counterfeit phonograph records, and numerous other items. In all of these statutes the predicate for federal jurisdiction might reasonably be identified in either of two ways: first, as I read the statutory language, it might require that the subject be transported across a state line; second, as the Court reads this language, it may merely require that the subject be transported during an interstate journey. 22 In this case the evidence indicates that petitioner transported stolen checks from Ohio into Pennsylvania. We must assume, because of insufficient contrary evidence, that petitioner did not forge the checks until he was on the Pennsylvania side of his interstate journey. The Court holds that this evidence proves a violation of 18 U.S.C. § 2314, which in pertinent part proscribes the transportation in interstate commerce of forged checks.2 According to the Court, a forged check is transported in interstate commerce as long as the check was in a forged condition at some point during the defendant's journey from one State to another. Consistent with this rationale, it was not even necessary that the Government proved that the checks crossed state lines.3 Under the Court's analysis, petitioner would have violated § 2314 if he had left his home in Ohio, picked up a forged check in Pittsburgh, and negotiated it in Beaver Falls.4 23 If the Court's reading of this language is consistently applied to all of the statutes in which the same jurisdictional predicate appears, this is an extremely important case. If the Court's holding is limited to the situation in which a check has been carried across a state line and then forged in the destination State, the holding is not very significant. Although it would be illogical to limit the holding in that way, a review of the relevant legislative history will demonstrate that the holding should not be extended to its logical conclusion. That review also demonstrates, I believe, that today's holding does not faithfully reflect the intent of Congress. 24 * "[T]he issue in the present case is the meaning that Congress ascribed to the phrase 'interstate commerce' in § 2314." Ante, at 647, n.9. More specifically, the question is "whether the statutory phrase 'interstate commerce' comprehends movement of a forged security [wholly] within the destination State," ante, at 648, or whether petitioner is correct that Congress intended "to limit the reach of that provision to those persons who transport forged securities across state lines," ante, at 647. For the answer to this question, the Court correctly looks to the legislative history of § 3 of the Dyer Act, the precursor of § 2314. The interstate commerce language that was enacted as § 3 of the Dyer Act in 1919 has been retained in § 2314; for our purposes, the subsequent enactments in 1934 and 1939 merely expanded the coverage of § 3 to other types of stolen property and to forged securities, respectively. 25 Section 3 of the Dyer Act proscribes, in accurate paraphrase, the transportation in interstate commerce of stolen motor vehicles. See 41 Stat. 325. The phrase, standing alone, admittedly is ambiguous. It is clarified by § 2(b) of the same statute, which provides that "[t]he term 'interstate . . . commerce' as used in this Act shall include transportation from one State . . . to another State." Ibid. Any lingering ambiguity is dispelled by the legislative history. 26 The problem that gave rise to the legislation, the House Judiciary Committee reported, was that "[t]hieves steal automobiles and take them from one State to another and ofttimes have associates in this crime who receive and sell the stolen machines." H.R.Rep.No.312, 66th Cong., 1st Sess., 1 (1919) (hereafter H.R.Rep.No.312). In a discussion of congressional power under the Commerce Clause, the Committee manifested its intention to proscribe only this problem: "The power of the Congress to enact this law and to punish the theft of automobiles in one State and the removing of them into another State can not be questioned," id., at 3; "[n]o good reason exists why Congress, invested with the power to regulate commerce among the several States, should not provide that such commerce should not be polluted by the carrying of stolen property from one State to another," id., at 4. In introducing the bill to the House, Representative Dyer opened his remarks by stating that "this bill is for the purpose of providing punishment for those stealing automobiles and automobile trucks and taking them from one State to another State." 58 Cong.Rec. 5470 (1919). He described §§ 3 and 4 of the Act, the precursors of 18 U.S.C. §§ 2314 and 2315, as follows: 27 "It provides, gentlemen, for only two things. Section 3 provides for the punishment of a thief stealing a car and transporting it from one State to another. Section 4 provides for the receipt of the stolen car by thieves in another State for the purpose of selling and disposing of it." 58 Cong.Rec. 5472 (1919). 28 Representative Igoe stated that "[t]he offense sought to be reached in the act is the transportation, the taking it across the line, taking it from one State to another." Id., at 5473. Senator Cummins, in introducing the House bill to the Senate, described its purpose to be "to punish the transportation of stolen motor vehicles in interstate or foreign commerce." Id., at 6433. He explained: 29 "I want Senators to know what the bill is. The favorite place for such thefts is near a State line, where vehicles are carried quickly across the State line, and there is very great difficulty in securing the punishment of the offender. The bill is for the purpose of giving the Federal courts jurisdiction for the punishment of such an offender." Ibid.5 30 Representative Bee, like Representative Reavis, objected to the bill because it "single[d] out automobiles" for special treatment. Id., at 5473. Representative Reavis stated that he would "be very glad indeed to vote for a bill making it a felony to transport stolen property of any kind from one State to another." Ibid. 31 The Court's expansive interpretation of the interstate commerce phrase in § 3 of the Dyer Act is far broader than any that was expressed by the Committees and the Members of the 66th Congress. The Court offers several reasons for its reading of the statute, but none withstands analysis. A. 32 The Court first reasons that, by using the phrase "transportation in interstate commerce of stolen motor vehicles" in the statute, Congress must have intended to proscribe more than the "transportation across state lines of stolen motor vehicles" or the "interstate transportation of stolen motor vehicles." The Court's reasoning from the text, however, is flawed in two respects. 33 First, the House Report and the Members of Congress who described the Dyer Act proscription as the "interstate transportation of stolen motor vehicles," or some such phrase focusing on state lines, used these phrases interchangeably with the phrase "transportation in interstate commerce of stolen motor vehicles," which was the formulation included in the proposed and enacted bill. The point is illustrated by Representative Dyer's descriptions of the interstate commerce element of the bill. For example, the final paragraph of the House Report that he submitted begins with the sentence, "The purpose of the proposed law is to suppress crime in interstate commerce." H.R.Rep.No.312, at 4. Two sentences later, however, the Report urges that Congress, pursuant to its power to regulate commerce, should "provide that such commerce should not be polluted by the carrying of stolen property from one State to another." Ibid. Representative Dyer opened his remarks to the House with the statement that "this bill is for the purpose of providing punishment for those stealing automobiles and automobile trucks and taking them from one State to another State." 58 Cong.Rec. 5470 (1919). It is inconceivable that Representative Dyer or any of the other legislators who used interchangeably the various phrases6 nevertheless intended the statutory formulation "transportation in interstate commerce of stolen motor vehicles" to mean any more than "interstate transportation of stolen motor vehicles" or "transportation across state lines of stolen motor vehicles" or "transportation of stolen motor vehicles from one State to another." 34 The second flaw in the Court's textual analysis is its reference to 18 U.S.C. § 10 for the definition of "interstate commerce." See ante, at 1336. Section 10 provides that "[t]he term 'interstate commerce', as used in this title, includes commerce between one State . . . and another State." It merits reiteration, however, that "interstate commerce" is defined much more narrowly in the Dyer Act and the National Stolen Property Act of 1934. Section 2(b) of the Dyer Act provides that the term "shall include transportation from one State . . . to another State." 41 Stat. 325 (emphasis added). Section 2(a) of the 1934 enactment provides that the term "shall mean transportation from one State . . . to another State." 48 Stat. 794 (emphasis added). When Congress revised the Federal Criminal Code in 1948, it consolidated several definitions of "interstate commerce" into § 10. The Reviser's Notes state only that, "[i]n addition to slight improvements in style, the word 'commerce' was substituted for 'transportation' in order to avoid the narrower connotation of the word 'transportation' since 'commerce' obviously includes more than 'transportation.' " Notes following 18 U.S.C. § 10. For purposes of divining the intent of Congress in enacting the Dyer Act in 1919, the National Stolen Property Act in 1934, and the amendments thereto in 1939, we must refer to the definition by which those Congresses understood the reach of those criminal statutes. B 35 There is a logical explanation—albeit an unarticulated one for Congress' use of the arguably broader formulation in the statute when its intent was so clearly less ambitious. This explanation is derived from the part of the legislative history in which the constitutionality of the proposed Dyer Act was justified by reference to this Court's expositions of the scope of congressional power under the Commerce Clause. The Court infers from one such part of the legislative history that "Congress intended the statutory phrase to be as broad as this Court had used the phrase in Commerce Clause decisions before 1919." Ante, at 653. If the legislative history is examined through 1919 lenses instead of from a distance of six decades, however, the only supportable conclusion is that Congress used the phrase "interstate commerce" merely to indicate the source of its authority to proscribe conduct that had previously been regulated solely by the States. 36 In the Court's words, the House Report "justif[ied] Congress' authority to enact the Dyer Act by reference to this Court's decisions holding that Congress has plenary power under the Commerce Clause to regulate interstate commerce." Ante, at 652. From this discussion in the House Report, the Court draws the conclusion that Congress meant to adopt as the definition of the statutory term this Court's construction of the constitutional term "interstate commerce." That conclusion does not logically follow from its premise and is without any support in the legislative history. 37 The part of the House Report cited by the Court begins with this paragraph: 38 "The power of the Congress to enact this law and to punish the theft of automobiles in one State and the removing of them into another State can not be questioned, in view of laws of similar nature heretofore enacted by Congress and the decisions of the Supreme Court of the United States touching same." H.R.Rep.No.312, at 3. 39 This statement establishes that (1) the objective of the statute was to proscribe the transportation of a stolen automobile from one State to another, and (2) the House Judiciary Committee was confident that this objective could be accomplished under the Commerce Clause, as interpreted by this Court. The Report's discussion of this Court's decisions justifies the Committee's confidence in the constitutionality of the Act. Indeed, the penultimate paragraph of the Report explains just how far Congress can act under the Commerce Clause;7 in the paragraph's closing sentence, which the Court quotes, ante, at 650, the Report states that even "[l]arceny of goods from railroad cars being transported in interstate commerce has . . . been declared a crime by act of Congress." H.R.Rep.No.312, at 4. But the Committee had a much more limited objective in proposing the Dyer Act. In the closing paragraph of the Report, it expressly linked its discussion of this Court's Commerce Clause cases with the statutory objective: "No good reason exists why Congress, invested with the power to regulate commerce among the several States, should not provide that such commerce should not be polluted by the carrying of stolen property from one State to another." Ibid. 40 The Committee's confidence in the constitutionality of the Act was not shared by all Members of Congress. Representative Newton described in detail the practice of automobile thieves of stealing cars and driving them across state lines where they could not be pursued by the police of the first State. See 58 Cong.Rec. 5474-5475 (1919). After summarizing the need for federal legislation,8 he turned to the question of its constitutionality: "But it has been seriously argued by Members of this House that Congress has no power to pass such a law; that such legislation is an invasion of the rights of the States. But if you will study the laws upon kindred subjects heretofore enacted by Congress and will read the decisions of the courts sustaining such laws I do not believe that a doubt will remain in the mind of even the most ardent States-rights advocate as to the powers of Congress upon this subject." Id., at 5475. 41 Representative Newton discussed a number of court decisions and repeatedly compared the federal laws therein upheld with the bill Congress was considering: 42 "In the face of the decisions which I have just read, can there be any question but what an automobile which is stolen in one State and transported across a State line into another State for the purpose of yielding a profit to the person transporting the same constitutes 'interstate commerce'? . . . 43 * * * * * 44 "Thus it will be observed that no particular vehicle of transportation is necessary in order to make the article transported interstate commerce, nor is it necessary that the article should be transported for any specific purpose. All that is necessary for it to become interstate commerce is that it shall be transported from one State to another, even though it be live stock driven on foot. 45 * * * * * 46 "If the driving of diseased cattle from one State to another is interstate commerce, as held in the decision just cited, and as held by the Supreme Court of the United States in the case of Railroad v. Hus[e]n (95 U.S. 465 [24 L.Ed. 527] ), then the driving of a stolen automobile from one State to another certainly falls within the meaning of that term. 47 * * * * * "If the transportation of a woman from one State to another, by means of an automobile, for prostitution, constitutes interstate commerce, then how can it be argued, with any show of color, that the driving of a stolen automobile from one State to another for profit is not interstate commerce?" Id., at 5475-5476. 48 Given these statements in the legislative history and the absence of any indication that any legislator intended the Dyer Act to proscribe more than the transportation of stolen automobiles from one State into another, it is manifest that Congress used the term "interstate commerce" and referred to this Court's decisions construing the Commerce Clause simply to articulate the source of its authority to proscribe the interstate transportation of stolen automobiles. The Court's suggestion that Congress incorporated into the statute the constitutional definition of "interstate commerce" is quite implausible. C 49 The final leg of the Court's analysis of the legislative history is the following colloquy between Representatives Anderson and Dyer: 50 "Mr. ANDERSON. I will ask the gentleman whether the committee meant the same thing in its definition of interstate commerce in section 2 as it meant in section 4? 51 "Mr. DYER. I think so. If the gentleman will point out wherein it differs, I shall be glad. 52 "Mr. ANDERSON. In the definition under section 2 interstate commerce means transportation from one State to another, while if you refer to section 4 you find there you have a vehicle or motor car constituting interstate or foreign commerce, and you scarcely have a sensible section. 53 "Mr. DYER. I will say to the gentleman that if there is any difference there, which I do not see, the matter would be construed by the Supreme Court, which has passed many times upon what is meant by interstate and foreign commerce. I think it really is not necessary to put the definition in this bill. It was done at the request of some of the members of the committee. The Supreme Court has decided many times what is interstate commerce. I do not think myself that any definition is necessary." Id., at 5472. 54 Since the Court places so much reliance upon Representative Dyer's answer, see ante, at 650-652, a careful parsing is necessary. Section 2(b) of the bill provided that "[t]he term 'interstate . . . commerce,' as used in this Act, shall include transportation from one State . . . to another State." 41 Stat. 325. Section 4 of the bill proscribed the receipt, concealment, storage, bartering, sale, or disposition of any stolen motor vehicle "moving as, or which is a part of, or which constitutes interstate . . . commerce." Ibid. Representative Anderson's confusion is understandable: § 2 defined interstate commerce in terms of interstate transportation; § 4, however, seemed to indicate that the automobile itself constituted interstate commerce, apart from the transportation of it.9 Representative Dyer obviously did not understand the confusion because he perceived no difference between the two sections insofar as the meaning of "interstate commerce" was concerned. He had no doubt that this Court knew what the term meant and that § 4 would be construed correctly; indeed, he saw no need for the statutory definition of "interstate commerce." Even if it could be said that Representative Dyer was willing to defer to this Court for the definition of the interstate commerce element of § 4, that is not what Congress did. The Dyer Act as proposed and as enacted included the definition of "interstate commerce" as transportation from one State to another. Moreover, § 4, which contained the confusing reference to interstate commerce, is the precursor of § 2315, not the section the Court interprets today. The precursor of § 2314 is § 3 of the Dyer Act, which has nothing to do with Representative Anderson's confusion and Representative Dyer's answer. 55 Interestingly, another colloquy, this one between Representatives Hastings and Saunders, also indicates the confusion about the meaning of § 4 of the bill: 56 "Mr. HASTINGS. I want to direct the gentleman's attention to section 4. Suppose an automobile is stolen, say, in the State of Virginia at some one point and is transported to some other point in the State of Virginia and sold to some one there who knows that property to have been stolen, would that be a Federal offense under section 4? 57 "Mr. SAUNDERS of Virginia. I think not. How would it be? Up to that point what has been done has not reached the dignity of a Federal offense. The Federal offense begins when there is a movement in interstate commerce. 58 "Mr. HASTINGS. Section 4 provides that anyone receiving stolen property knowing it to have been stolen, and it does not require it to have gone across State lines, as you will perceive if you read section 4 closely. 59 "Mr. SAUNDERS of Virginia. The gentleman did not read the language in line 10, which says: 60 Moving as, or which is a part of, or which constitutes interstate or foreign commerce. 61 "And that answers the difficulty of the gentleman from Oklahoma." 58 Cong.Rec. 5477 (1919). 62 Immediately after this colloquy, Representative Dyer asked for a vote, and the House passed the bill. If we were construing § 2315, which is the successor to § 4 of the Dyer Act, then this colloquy would seem to indicate that § 4 requires the automobile to have crossed state lines, notwithstanding the confusing reference to "interstate commerce" in that section and Representative Dyer's answer to Representative Anderson's observation. In any event, we are not construing § 2315, but § 2314, and the definition of "interstate commerce" included in the Dyer Act, as well as the statute's legislative history, clearly indicates that § 3, the precursor of § 2314, proscribed only the transportation across state lines of stolen automobiles. II 63 The National Stolen Property Act, enacted in 1934, merely extended the Dyer Act to the transportation in interstate commerce of other types of stolen property.10 The Act was passed with little debate, but its legislative history confirms the points made above. As they did in 1919, the Committees and Members of Congress used the phrase "transportation in interstate commerce of stolen property" interchangeably with such phrases as "interstate transportation of stolen property" or "transportation across state lines of stolen property." The Senate Judiciary Committee Report described the Dyer Act as "concerned [with] interstate transportation of stolen motor vehicles." S.Rep.No.538, 73d Cong., 2d Sess., 2 (1934). The House Judiciary Committee Report stated that "[t]his bill is designed to punish interstate transportation of stolen property, securities, or money." H.R.Rep.No.1462, 73d Cong., 2d Sess., 2 (1934). It also noted that "[p]revious Congresses have considered bills providing punishment for interstate shipment of stolen property." Ibid. Senator Ashurst told the Senate: Gangsters who now convey stolen property, except vehicles, across the State line, with that immemorial gesture of derision, thumb their nose at the officers. This bill extends the provisions of the [Dyer Act] to other stolen property described in the bill." 78 Cong.Rec. 6981 (1934). Also like the legislative history of the Dyer Act, the Reports in 1934 substantiated the constitutionality of the enactment, this time by reference to the decisions upholding the Dyer Act. See S.Rep.No.538, supra, at 2; H.R.Rep.No.1462, supra, at 2. 64 The Reports made an additional point that merits consideration. The Department of Justice, in a memorandum reprinted in the Senate Report, explained the troubles that previous attempts at extending the Dyer Act to other stolen property had faced: 65 "The explanation for the opposition to federalizing such crimes was in the concern which had developed at that time over the burdening of the Federal machinery for administering criminal justice. It was for this reason also that the Senate failed to pass a similar bill in 1930. The heavy burden placed on the Federal Government by the Dyer Act, which concerned interstate transportation of stolen motor vehicles, had then become apparent." S.Rep.No.538, supra, at 2. 66 The Senate bill therefore limited federal jurisdiction to cases involving stolen property worth $1,000 or more. The House increased the limit to $5,000, with this explanation: 67 "It is believed that it would place too great a burden on the Department of Justice to ask it to undertake to apprehend and prosecute every person violating the substantive provisions of such a law without regard to the amount of property involved. The minimum valuations fixed in the bill required to give the Federal Government jurisdiction are the figures asked and recommended by the Attorney General." H.R.Rep.No.1462, supra, at 2. 68 The Senate acceded to the increase. The point to be made is that Congress recognized that federal law enforcement authorities had limited resources. This recognition makes it all the more likely that Congress did not intend in 1934 to extend its proscription beyond the interstate transportation of stolen property. III 69 Quoting from United States v. Sheridan, 329 U.S. 379, 384, 67 S.Ct. 332, 335, 91 L.Ed. 359, the Court declares that "in [enacting] § 2314 Congress 'contemplated coming to the aid of the states in detecting and punishing criminals whose offenses are complete under state law, but who utilize the channels of interstate commerce to make a successful getaway and thus make the state's detecting and punitive processes impotent.' " Ante, at 654. Ironically, this quote actually refutes the Court's position. The Court assumes, as it must, that the state offense committed by petitioner—forging a check—was committed in Pennsylvania rather than in Ohio, from which petitioner commenced his interstate journey. This is not a case, therefore, in which the defendant's offense was complete under state law before he crossed state lines to make his getaway. Rather, this is a case in which the defendant crossed state lines and then committed the underlying state offense.11 It is even more ironic that, although the issue of the meaning of the interstate commerce phrase of § 2314 was not before the Court in Sheridan, the Court thrice referred to that element as the "interstate transportation" of forged securities. See 329 U.S., at 384, 385, 387, 67 S.Ct., at 334, 335, 336. Remarkably, the Court today places so much significance upon the statutory formulation of the interstate commerce element of § 2314 even though in referring to that element the Committees and Members of the 1919 and 1934 Congresses, as well as this Court in Sheridan, repeatedly used the formulation that the Court rejects today as too narrow. IV 70 The petitioner's argument that he was prosecuted and convicted under the wrong statute may generate little sympathy.12 Our primary concern, however, is not with the fate of this defendant. Rather, our concern is to identify the scope of the Federal Government's responsibility for law enforcement. That scope is a matter for Congress to determine. In this case, it is clear to me that the Court has allowed the prosecutor to encroach into an area of state responsibility and to cross a line that Congress has drawn. I therefore respectfully dissent. 1 Title 18 U.S.C. § 2314 provides in pertinent part: "Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any falsely made, forged, altered, or counterfeited securities or tax stamps, knowing the same to have been falsely made, forged, altered, or counterfeited . . . * * * * * "Shall be fined not more than $10,000 or imprisoned not more than ten years, or both." 2 Title 18 U.S.C. § 2312 provides: "Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both." 3 Title 18 U.S.C. § 2311 states that, as used in §§ 2311-2318, the term "[s]ecurities includes any . . . check." 4 Tr. 68A-78A. 5 The petitioner introduced no evidence. 6 The entire instruction on this issue was as follows: "Well, [interstate commerce] means any movement or transportation of these forged checks from one state into another, and it includes all continuing movements of said forged check while in the second state, in this case Pennsylvania, until the movement of said forged check has ceased. "Now, the Government must show that the checks were transported in interstate commerce in a forged condition. However, the transportation within the destination state here, Pennsylvania, may be considered transportation in interstate commerce if it is a continuation of the movement that began out of state. "The Government need not exclude every speculative possibility that the transportation may have been interrupted at some point, nor need the Government show each step in the security's movement in interstate commerce. "Now, if you believe that the Government has shown that the Defendant transported the checks while they were in a forged condition within the State of Pennsylvania, the requirements of the law are satisfied if that transportation was part of interstate commerce. In other words, the check had to originate at sometime in Ohio and had to have been transported at sometime in Pennsylvania in order to effect interstate commerce. So the Government must prove this Defendant transported the checks involved in Counts 1 and 3 of the indictment in interstate commerce between Ohio and Pennsylvania, but need not prove the place in Ohio from which the checks started or from where the Defendant started." Id., at 164A-165A. After some discussion at the bench with the lawyers, the judge further instructed the jury: "As to Counts 1 and 3, the Government must prove with evidence that convinces you beyond a reasonable doubt that the Defendant caused the transportation of the two checks in question, that is, in Counts 1 and 3, the check to Rini, the check to Don Allen Chevrolet, in interstate commerce, from Ohio to Pennsylvania." Id., at 181A. 7 That part of the Court of Appeals' judgment vacating the conviction on count 2 is not before this Court. 8 Judge Adams, joined by Chief Judge Seitz, concurred in the majority opinion on counts 1 and 3, but dissented from the court's holding that the conviction on count 2 should be vacated. Although he agreed that the trial judge correctly had instructed the jury on counts 1 and 3, Judge Garth dissented from the affirmance on those counts, arguing that the Government had presented insufficient evidence to sustain the convictions. Judge Higginbotham concurred with the majority opinion on count 2, but dissented from its holdings on counts 1 and 3. He reasoned that § 2314 was ambiguous, and that consequently the principle of lenity required the court to construe the statute strictly against the Government and hold that the statute was violated only if the security had been forged before crossing state lines. 9 The petitioner concedes that Congress has authority under the Commerce Clause, Art. I, § 8, cl. 3 (which provides in part that "Congress shall have Power . . . To regulate Commerce . . . among the several States"), to enact a criminal statute prohibiting the transportation in interstate commerce of a security that was not forged until after crossing state lines. Consequently, the issue in the present case is the meaning that Congress ascribed to the phrase "interstate commerce" in § 2314. 10 Although the petitioner challenged the sufficiency of the evidence on counts 1 and 3 in his petition for writ of certiorari, this Court limited the grant of certiorari to the statutory construction issue. Thus, we accept the Court of Appeals' conclusion that the evidence was sufficient to sustain the jury's finding that "on each occasion [the petitioner] made a trip from Ohio to Pennsylvania, carrying with him a check that was forged either in Ohio or Pennsylvania." 644 F.2d 274, 279 (CA3 1981). 11 The predecessor of 18 U.S.C. § 10 was § 2(b) of the Dyer Act, which stated that the term "interstate commerce" "shall include transportation from one State . . . to another State." 41 Stat. 325. 12 The Act provided in part: "Sec. 2. That . . .: * * * * * "(b) The term 'interstate or foreign commerce' as used in this Act shall include transportation from one State . . . to another State . . .. "Sec. 3. That whoever shall transport or cause to be transported in interstate or foreign commerce a motor vehicle, knowing the same to have been stolen, shall be punished by a fine of not more than $5,000, or by imprisonment of not more than five years, or both. "Sec. 4. That whoever shall receive, conceal, store, barter, sell, or dispose of any motor vehicle, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be punished by a fine of not more than $5,000, or by imprisonment of not more than five years, or both." The Act was expanded in 1934 to cover other types of stolen property, see National Stolen Property Act, 48 Stat. 794, and in 1939 to cover forged securities. See Act of Aug. 3, 1939, 53 Stat. 1178. Sections 3 and 4 were later codified as 18 U.S.C. §§ 2312 and 2313 respectively. None of the legislative Reports or debates concerning these amendments, however, contains any explanation of the "interstate commerce" requirement. See H.R.Rep.No.1462, 73d Cong., 2d Sess., 2 (1934) (stating that the new Act was "designed to punish interstate transportation of stolen property, securities, or money," and that it was "drafted to follow the language of the Dyer Act, the constitutionality of which has frequently been upheld in the Federal courts"); S.Rep.No.538, 73d Cong., 2d Sess., 1 (1934) (approving a Justice Department memorandum stating that the purpose of the Act is "to provide a penalty for knowingly transporting stolen property in interstate or foreign commerce"); H.R.Rep.No.422, 76th Cong., 1st Sess., 1 (1939) (stating that the bill "widens the scope of the National Stolen Property Act of 1934 . . . by making its provisions applicable to embezzled property, securities and money"); S.Rep.No.674, 76th Cong., 1st Sess., 2 (1939) (approving a letter from the Attorney General stating in part that the "principal purposes of the pending bill are to extend the existing law to property that has been embezzled, and also to forged or counterfeited securities"). 13 Obviously, Representative Dyer believed that a federal crime would be committed even though the larceny did not occur at the exact moment that the railroad car crossed a state line. It is fair to conclude from this example that he understood "interstate commerce," as used in the Dyer Act, to have a broader meaning than transportation across state lines. 14 The entire colloquy between Representatives Dyer and Anderson is as follows: "Mr. ANDERSON. I will ask the gentleman whether the committee meant the same thing in its definition of interstate commerce in section 2 as it meant in section 4? "Mr. DYER. I think so. If the gentleman will point out wherein it differs, I shall be glad. "Mr. ANDERSON. In the definition under section 2 interstate commerce means transportation from one State to another, while if you refer to section 4 you find there you have a vehicle or motor car constituting interstate or foreign commerce, and you scarcely have a sensible section. "Mr. DYER. I will say to the gentleman that if there is any difference there, which I do not see, the matter would be construed by the Supreme Court, which has passed many times upon what is meant by interstate and foreign commerce. I think it really is not necessary to put the definition in this bill. It was done at the request of some of the members of the committee. The Supreme Court has decided many times what is interstate commerce. I do not think myself that any definition is necessary." 58 Cong.Rec. 5472 (1919). Of course, the definition to which Representative Dyer refers stated that interstate commerce "shall include transportation from one State . . . to another State." 41 Stat. 325 (emphasis added). The dissenting opinion entirely ignores Congress' use of the word "include" in the 1919 Act, choosing instead to read the definition as if Congress' only "objective . . . was to proscribe the transportation of a stolen automobile from one State to another." Post, at 666. In the 1934 National Stolen Property Act, 48 Stat. 794, Congress expanded the coverage of the Dyer Act, and in § 2(a) provided that "[t]he term 'interstate . . . commerce' shall mean transportation from one State . . . to any State." The House Report makes clear that the "bill is drafted to follow the language of the Dyer Act, the constitutionality of which has frequently been upheld in the Federal courts." H.R.Rep.No.1462, 73d Cong., 2d Sess., 2 (1934). Although a "change of [statutory] language is some evidence of a change of purpose," Johnson v. United States, 225 U.S. 405, 415, 32 S.Ct. 748, 751, 56 L.Ed. 1142 (1912), the inference of a change of intent is only "a workable rule of construction, not an infallible guide to legislative intent, and cannot overcome more persuasive evidence." United States v. Dickerson, 310 U.S. 554, 561, 60 S.Ct. 1034, 1038, 84 L.Ed. 1356 (1940). Because the legislative history contains no indication that the variation in the language had changed the meaning of "interstate commerce," and more importantly, because the House Report states that the language of the 1934 Act was drafted to follow the language of the Dyer Act, we conclude that Congress intended nothing by the change in language. Moreover, in 1948, Congress made an additional modification in the definition of "interstate commerce," this time resubstituting the word "include" and substituting the word "commerce" for the word "transportation." 15 See H.R.Rep.No.312, 66th Cong., 1st Sess., 1 (1919) (noting that "[t]hieves steal automobiles and take them from one State to another and ofttimes have associates in this crime who receive and sell the stolen machines"); id., at 3 ("The power of the Congress to enact this law and to punish the theft of automobiles in one State and the removing of them into another State can not be questioned"); id., at 4 ("No good reason exists why Congress, invested with the power to regulate commerce among the several States, should not provide that such commerce should not be polluted by the carrying of stolen property from one State to another"); 58 Cong.Rec. 5470 (1919) (remarks of Rep. Dyer) (stating that "this bill is for the purpose of providing punishment for those stealing automobiles and automobile trucks and taking them from one State to another State"); id., at 5472 (remarks of Rep. Dyer) ("Section 3 provides for the punishment of a thief stealing a car and transporting it from one State to another"); id., at 5473 (remarks of Rep. Reavis) (stating that he would support a broader bill that would make it a "felony to transport stolen property of any kind from one State to another"); ibid. (remarks of Rep. Igoe) ("The offense sought to be reached in the act is the transportation, the taking it across the line, taking it from one State to another"); id., at 6433 (remarks of Sen. Cummins) (stating that the "bill is for the purpose of giving the Federal courts jurisdiction for the punishment of" thieves who carry stolen automobiles across state lines). None of these statements, however, purports to limit the statutory definition of interstate commerce to the act of crossing state lines. Nor is there any basis to believe that Congress used the phrase "interstate commerce" in the statute interchangeably with " 'interstate transportation' . . . or some such phrase focusing on state lines." STEVENS, J., dissenting, post, at 663-664. While Congress may have been concerned principally with thieves who cross state borders with stolen cars, it did not so limit the language of the statute. Instead, Congress drafted a more comprehensive statute that would reach criminals who use interstate channels to avoid detection and punishment. The dissenting opinion's alternative explanation—that Congress used the expression " 'interstate commerce' merely to indicate the source of its authority," post, at 665—is also unpersuasive. Although supporters of the bill were careful to justify its constitutionality, nothing in the statutory language or the legislative history indicates that Congress used the constitutionally significant term "interstate commerce" in the bill merely to point to its authority to enact such legislation. Rather, the most rational inference is that Congress used the term to specify the types of activities proscribed by the Act—thefts involving "interstate commerce" as that term had been interpreted by this Court. 16 Some Circuits have even indicated that the statutory phrase "interstate commerce" is coextensive with congressional authority under the Commerce Clause. See United States v. Roselli, 432 F.2d 879, 891 (CA9 1970) ("The sole reason for conditioning [§ 2314's] prohibitions upon use of interstate commerce is to provide a constitutional basis for the exercise of federal power"), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971); United States v. Ludwig, 523 F.2d 705, 707 (CA8 1975) (same), cert. denied, 423 U.S. 1076, 96 S.Ct. 861, 47 L.Ed.2d 86 (1976). 17 See Champion v. Ames, 188 U.S. 321, 358, 23 S.Ct. 321, 327, 47 L.Ed. 492 (1903) (illustrating that a regulatory statute enacted under the Commerce Clause can take the form of a prohibition, the Court stated that "it cannot be doubted that Congress, under its power to regulate commerce, may . . . provide for [cattle to be] inspected before transportation begins"); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 527, 31 S.Ct. 279, 288, 55 L.Ed. 310 (1911) (goods are in "interstate . . . commerce when they have 'actually started in the course of transportation to another State, or [are] delivered to a carrier for transportation' ") (quoting Coe v. Errol, 116 U.S. 517, 525, 6 S.Ct. 475, 477, 29 L.Ed. 715 (1886) ); Texas & N.O.R. Co. v. Sabine Tram Co., 227 U.S. 111, 122-123, 33 S.Ct. 229, 233, 57 L.Ed. 442 (1913); Illinois Central R. Co. v. Fuentes, 236 U.S. 157, 163, 35 S.Ct. 275, 276, 59 L.Ed. 517 (1915) ("generally when this interstate character has been acquired it continues at least until the load reaches the point where the parties originally intended that the movement should finally end"). The House Report on the Dyer Act cited Champion v. Ames, supra, to justify Congress' constitutional authority to enact the Dyer Act. H.R.Rep.No.312, 66th Cong., 1st Sess., 4 (1919). 18 Even though Congress did not address the meaning of "interstate commerce" in the 1934 and 1939 extensions of the Dyer Act, there is no reason to believe that Congress abandoned its original meaning. In fact, because the Supreme Court between 1919 and 1939 continued to define interstate commerce more broadly than merely as commerce crossing state lines, see e.g., Champlain Realty Co. v. Brattleboro, 260 U.S. 366, 43 S.Ct. 146, 67 L.Ed. 309 (1922); Carson Petroleum Co. v. Vial, 279 U.S. 95, 49 S.Ct. 292, 73 L.Ed. 626 (1929), there is ample reason to believe that Congress intended § 2314 to have the same reach as its predecessor section in the Dyer Act. 19 The facts of the present case illustrate this point. The petitioner, who lived in Ohio at the time he forged the Union checks, see Tr. 16A, brought the stolen checks from Ohio into Pennsylvania. He forged them at an unknown time and place to purchase a boat and a car. Requiring prosecutors to prove on which side of the border the petitioner forged the checks, when in fact the petitioner had transported the forged checks in continuation of a longer interstate journey, serves no purpose. In addition, as the supporters of the Dyer Act recognized, federal authority may be necessary to investigate fully the crime and to compel witnesses from other States to testify. See 58 Cong.Rec. 5475 (1919) (remarks of Rep. Newton) ("all the witnesses from anywhere in the United States can be compelled to appear and testify [before the grand jury], and a full and complete investigation can be had in every case, and when a case is called for trial, the barrier of the State line having been swept away, the witnesses will be compelled to appear and testify in open court"). Absent federal jurisdiction, it may have been impossible, or at the least extraordinarily difficult, to compel Union and bank officials from Ohio to testify in a Pennsylvania state court that the checks had been stolen, when they had been stolen, when the bank account had been closed, that the signature on the checks had been forged, and that the petitioner had no authority to write those checks. There is no foundation for the fear expressed in the dissenting opinion that our decision today is a broad expansion of federal jurisdiction in criminal law. Post, at 660. The implications of this case are limited by the facts and its holding that the forged check was transported in interstate commerce only because that transportation was a continuation of a longer journey that began out of state. If the entire transaction—obtaining and forging the checks, purchasing the car and boat, and returning the checks to the bank for collection—had occurred solely within Ohio, it seems clear that the checks would not have been "transport[ed] in interstate commerce." In light of today's limited holding, the dissent's suggestion that we are overburdening limited federal prosecutorial resources, post, at 674, is misplaced. 20 See also Pereira v. United States, 347 U.S. 1, 9, 74 S.Ct. 358, 363, 98 L.Ed. 435 (1954) (holding that since the fraudulently obtained checks had to be sent to an out-of-state bank for collection, the petitioner was guilty of violating § 2314 because he " 'caused' [the check] to be transported in interstate commerce"). 21 The cases cited by the petitioner in support of his position do not dissuade us from our conclusion, for none of the cases based its holding on an analysis of the language, legislative history, or purpose of § 2314. In United States v. Owens, 460 F.2d 467, 469 (CA5 1972), for example, the court simply quoted the pertinent language of § 2314 and held, without analysis or citation to authority, that it "is obvious that to prove the commission of an offense under this portion of section 2314 the Government must show that the instrument traveled interstate in its forged or altered condition." See United States v. Hilyer, 543 F.2d 41, 43 (CA8 1976) (citing only Owens for the proposition that § 2314 requires proof that the security was forged before crossing state lines); United States v. Sparrow, 635 F.2d 794, 796 (CA10 1980) (en banc) (citing only Owens and Hilyer for its holding that "the plain meaning of [§ 2314] requires the prosecution to show that the security was in a forged or altered condition at the time of its interstate passage"), cert. denied, 450 U.S. 1004, 101 S.Ct. 1717, 68 L.Ed.2d 209 (1981). We note that our holding today is consistent with other cases construing similar federal statutes designed to combat theft in the channels of interstate commerce. In United States v. Ajlouny, 629 F.2d 830 (CA2 1980), cert. denied, 449 U.S. 1111, 101 S.Ct. 920, 66 L.Ed.2d 840 (1981), the court reviewed a challenge to a conviction under the "foreign commerce" aspect of the first paragraph of § 2314 (transportation of stolen goods in interstate or foreign commerce). In that case, the defendant had been arrested shortly before he shipped stolen telephone equipment from New York to Doha, Qatar. The court rejected the defendant's claim that no federal offense had occurred because no international boundary had been crossed, holding that "Congress was not aiming only at stolen goods moving across a technical boundary line, but also wanted to reach shipments in the course of such a crossing." 629 F.2d, at 837. In Barfield v. United States, 229 F.2d 936 (CA5 1956), the defendant challenged his conviction under 18 U.S.C. § 2312, which prohibits the interstate transportation of stolen vehicles, using the same "interstate commerce" language as used in § 2314. See n. 2, supra. The court rejected the defendant's argument that the Government's failure to show that he had driven the car across a state border required acquittal. "[A]ny driving, whether wholly within the state of origin, state of destination, or from and to, if done as a substantial step in the furtherance of the intended interstate journey is, we think, within the act." 229 F.2d, at 939. See United States v. Lambert, 580 F.2d 740, 743 (CA5 1978). Cases reviewing other statutes, with slightly different "interstate commerce" provisions arrive at the same result that we reach today. In United States v. Tobin, 576 F.2d 687 (CA5), cert. denied, 439 U.S. 1051, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978), the defendants were convicted of receiving and conspiring to sell stolen goods "moving as, or which are a part of, or which constitute interstate . . . commerce" in violation of 18 U.S.C. § 2315. The court rejected the defendants' argument that the stolen goods had been taken out of interstate commerce by coming to rest, holding that "[s]o long as its movement within the destination state can be considered a continuation of the movement that began out of state the prerequisite of 18 U.S.C. § 2315 is satisfied." 576 F.2d, at 692. See United States v. Luman, 624 F.2d 152, 155 (CA10 1980) (18 U.S.C. § 2315); United States v. Licavoli, 604 F.2d 613, 624-625 (CA9 1979) (18 U.S.C. § 2315), cert. denied, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980); United States v. Garber, 626 F.2d 1144, 1148 (CA3 1980) (construing similar language in 18 U.S.C. § 659, the court held that "[d]elays enroute do not deprive shipments of continued characterization as interstate or foreign so long as the goods have not yet reached their destination"), cert. denied, 449 U.S. 1079 (1981); United States v. Maddox, 394 F.2d 297, 299-300 (CA4 1968) (18 U.S.C. § 659); United States v. Hiscott, 586 F.2d 1271, 1274 (CA8 1978) (18 U.S.C. § 2313); United States v. Goble, 512 F.2d 458, 469 (CA6 1975) (18 U.S.C. § 2313). 22 We reject the petitioner's suggestion that our holding today reads § 2314 as if Congress intended to "expand the authority of the Federal Government over the entire field of criminal fraud." Brief for Petitioner 23. Rather, our holding is consistent with the expressed congressional purpose to apprehend forgers who use state boundaries to evade detection and punishment by state authorities. Had the petitioner not used interstate channels to pass his forged checks, he would not have been subject to punishment under § 2314. 1 See, e.g., 18 U.S.C. § 844(d) (explosives); 18 U.S.C. § 924(b) (1976 ed., Supp.IV) (firearms); 18 U.S.C. § 1201(a)(1) (1976 ed., Supp.IV) (kidnaping); 18 U.S.C. § 1231 (strikebreaking); 18 U.S.C. § 1301 (lotteries); 18 U.S.C. § 1465 (obscenity); 18 U.S.C. §§ 2251, 2252 (1976 ed., Supp.IV) (sexual exploitation of children); 18 U.S.C. § 2312 (stolen motor vehicles and aircraft); 18 U.S.C. § 2314 (other stolen property); 18 U.S.C. § 2318 (1976 ed., Supp.IV) (counterfeit phonograph records), 18 U.S.C. § 2421 (prostitution); 18 U.S.C. §§ 2511(1)(b)(iii), 2512(1) (electronic eavesdropping). 2 Section 2314 also requires proof that the defendant knew that the transported checks were forged. This element is not at issue here. 3 The instructions of the trial court required proof that the check had moved from Ohio to Pennsylvania, see ante, at 645-646, n. 6, but the Court's interpretation of the statute would apply equally to a forged check picked up in the destination State. For the Court the test is whether there was "movement" of the contraband "within the destination State." Ante, at 648. The Court of Appeals' position is unclear. See 644 F.2d 274, 282, n. 1 (CA3 1981) (Garth, J., concurring and dissenting). 4 Likewise, a transcontinental hitchhiker who stole a car in Pittsburgh and abandoned it in Philadelphia would have violated the Dyer Act. 5 Later, Senator Cummins further described the House bill: "The practice is to steal an automobile close to a State line and run it across the State line. The first section is intended to punish anyone who does that thing, knowing the vehicle to have been stolen. The further practice is, if possible, to dispose of the vehicle to some other party, confederate or otherwise, when it gets across the State line, and section 4 is for the purpose of punishing a man who barters or sells or disposes of the property with intent to deprive the owner of the possession thereof, or if he conceals it knowing it to have been stolen. I think that would probably embrace every case that could be reached." 58 Cong.Rec. 6434 (1919). 6 See, e.g., id., at 5472-5473 (Rep. Reavis); id., at 5473 (Rep. Igoe); id., at 5474-5476 (Rep. Newton); id., at 6433-6434 (Sen. Cummins). 7 "Congress has enacted various laws for the regulation of interstate commerce which have uniformly been sustained by the courts. Among them are those relating to the use of safety appliances, hours of labor of employees, monthly reports of accidents, arbitration of controversies between railroads and their employees, the exclusion of impure goods and lottery tickets, employers' liability, etc. Specific reference may be made to the interstate commerce act, wherein interstate commerce railroads are forbidden to form combinations or pools for the maintenance of rates, and also the antitrust act of July 2, 1890, wherein every contract combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several States was declared a crime, and made punishable as such. Larceny of goods from railroad cars being transported in interstate commerce has also been declared a crime by act of Congress." H.R.Rep.No.312, at 4. 8 "That there is a crying need for relief from this rapidly growing evil there can be no question. That the States have been unable to effectively deal with the problem has been fully demonstrated. I have no doubt but that 90 per cent of the cars that are stolen and not recovered cross State lines before they are disposed of. The use which the automobile thief is making of interstate commerce takes him into a sphere which is beyond the reach of State control, and into a field where he can operate with security and where he will continue to do so until Congress asserts its power by the passage of a bill such as the one now under consideration." 58 Cong.Rec. 5475 (1919). 9 This is the section that Representative Dyer had just previously described as providing for the punishment of "the receipt of the stolen car by thieves in another State for the purpose of selling and disposing of it." Id., at 5472. 10 In the 1934 National Stolen Property Act, Congress adopted a slightly different definition of "interstate commerce" than the one included in the 1919 Dyer Act. Section 2(b) of the Dyer Act provides that the term shall include transportation from one State to another State, whereas § 2(a) of the 1934 enactment provides that the terms shall mean transportation from one State to another State. There is no reason to believe that one definition was intended to be any broader than the other. But see the Court's curious discussion, ante, at 650-652, n.14. 11 The evidence does not indicate where petitioner traveled after the forgeries. 12 Petitioner concedes that he violated 18 U.S.C. § 2315, the successor to § 4 of the Dyer Act. See Tr. of Oral Arg. 11. Petitioner might also have violated other paragraphs of § 2314. See 644 F.2d, at 285 (Higginbotham, J., concurring in part and dissenting in part); Tr. of Oral Arg. 18.

01

455 U.S. 608 102 S.Ct. 1312 71 L.Ed.2d 495 U. S. INDUSTRIES/FEDERAL SHEET METAL, INC., et al., Petitionersv.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, et al. No. 80-518. Argued Oct. 6, 1981. Decided March 23, 1982. Syllabus Respondent Riley (hereafter respondent) awoke on the morning of November 20, 1975, with severe pains in his neck, shoulders, and arms. Subsequently, he filed a claim for disability benefits under the Longshoremen's and Harbor Workers' Compensation Act (Act), alleging that he suffered an accidental injury in the course of his employment on November 19, 1975, when he was lifting duct work and felt a sharp pain in his neck. The Administrative Law Judge found that the accident never occurred and denied the claim, and the Benefits Review Board affirmed. The Court of Appeals vacated the Board's decision, holding that respondent suffered an "injury" when he awakened in pain on November 20, and that under § 20(a) of the Act—which provides that in any proceeding for the enforcement of a claim for compensation under the Act "it shall be presumed, in the absence of substantial evidence to the contrary . . . [t]hat the claim comes within the provisions of [the Act]"—respondent was entitled to a presumption that the injury was "employment-bred." Held : 1. The Court of Appeals erred in invoking the § 20(a) presumption in support of a claim that respondent did not make, he having claimed that he was injured at work and not that the "injury" occurred at home and that it was somehow "employment-bred." In this case there is no reason to depart from the specific statutory direction that a claim be made and that the presumption, however construed, attach to the claim. Pp. 612-615. 2. The Court of Appeals also erred in its use of the term "injury" as including respondent's attack of pain occurring on the morning of November 20. The Act defines "injury" as an "accidental injury . . . arising out of and in the course of employment," so that a prima facie "claim for compensation," to which the § 20(a) presumption refers, must at least allege an injury that arose in the course of employment as well as out of employment. Here, however, the "injury" noticed by the Court of Appeals arose in bed, not in the course of employment. The statutory presumption is no substitute for the allegations necessary to state a prima facie case. Pp. 615-616. 200 U.S.App.D.C. 402, 627 F.2d 455, reversed. Richard W. Galiher, Jr., Washington, D. C., for petitioners. James F. Green, Washington, D. C., for respondents. Justice STEVENS delivered the opinion of the Court. 1 In the early morning of November 20, 1975, respondent Ralph Riley awoke with severe pains in his neck, shoulders, and arms, which later were attributed by physicians to an exacerbation of an arthritic condition. The United States Court of Appeals for the District of Columbia Circuit held that this "injury" was sufficient to invoke the "statutory presumption of compensability,"1 § 20(a) of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. (part 2) p. 1436, 33 U.S.C. § 920(a), and vacated the administrative denial of disability benefits. We granted certiorari, 450 U.S. 979, 101 S.Ct. 1512, 67 L.Ed.2d 813, and we now reverse. 2 Contending that he was permanently and totally disabled by the arthritic condition,2 Riley's retained counsel filed with the Deputy Commissioner a claim for compensation under the Act. See 33 U.S.C. § 913. On standard form LS-203, in response to the direction to "[d]escribe in full how the accident occurred,"3 Riley wrote that on November 19, 1975, he was "[l]ifting duct work with co-worker, weighing approximately 500 pounds, felt sharp pain in neck and sat down." App. 111. 3 An evidentiary hearing was convened before an Administrative Law Judge. After construing the evidence in a light most favorable to Riley and resolving all doubts in his favor, the Administrative Law Judge found "that Claimant sustained no injury within the meaning of Sec. 2(2) of the Act on November 19, 1975, as alleged, and that Claimant and Sutherland [Riley's co-worker] gave false testimony as to the happening of the accident." App. to Pet. for Cert. 24A. 4 A divided panel of the Benefits Review Board affirmed the denial of disability benefits, holding that the Administrative Law Judge's findings were supported by substantial evidence. In dissent, Member Miller stated: 5 "The Act does not require that claimant prove an accident in order to establish a claim. To the contrary, compensation is payable under the Act if claimant is disabled because of injury which is causally related to his employment. 33 U.S.C. §§ 902(10), 902(2)." 9 BRBS 936, 940 (1979) (emphasis in original). 6 Member Miller defined an injury as "something go[ne] wrong within the human frame." Ibid. Riley suffered such an injury when he awoke on November 20 with severe pain. Therefore, Member Miller would have remanded the case for a determination of "the real issue in this case," which "is not whether claimant sustained an accident at work but whether claimant's injury is causally related to his employment." Ibid. That determination was to be made in light of the § 20(a) presumption, which "places the burden on employer to prove by substantial evidence that claimant's injury did not arise out of or in the course of employment." Ibid. 7 On Riley's petition for review, the Court of Appeals vacated the decision of the Benefits Review Board, agreeing with Member Miller's position. Riley v. U. S. Industries/Federal Sheet Metal, Inc., 200 U.S.App.D.C. 402, 627 F.2d 455 (1980). The court stated that "it can hardly be disputed that petitioner suffered an 'injury' when he awakened in pain on November 20, 1975." Id., at 405, 627 F.2d, at 458. The court then turned its "attention to the statutory presumption and the range of situations to which this Court has applied it." Ibid. It construed its earlier cases as holding "that an injury need not have occurred during working hours" and "need not be traceable to any particular work-related incident to be compensable." Id., at 405-406, 627 F.2d, at 458-459.4 8 "The foregoing cases make clear the pervasive scope of the statutory presumption of compensability. Indeed, no decision of this Court has ever failed to apply the presumption to any facet of any claim before it. We now hold expressly that where a claimant has been injured, the Act requires that, in the absence of substantial evidence to the contrary, a claimant be given the benefit of a rebuttable presumption that the injury arose out of and in the course of the claimant's employment." Id., at 406, 627 F.2d, at 459. 9 The question for remand was not whether Riley's "injury" stemmed from a "work-related incident," but whether it was " 'employment-bred.' " Ibid. 10 The Court of Appeals erred because it overlooked (1) the statutory language that relates the § 20(a) presumption to the employee's claim, and (2) the statutory definition of the term "injury." 11 * The Court of Appeals' first error was its invocation of the § 20(a) presumption in support of a claim that was not made by Riley. Riley claimed that he suffered an injury at work on November 19 when he was lifting duct work and felt a sharp pain in his neck. The Administrative Law Judge found as a matter of fact that the accident had not occurred; this finding is no longer challenged. The Court of Appeals' theory of recovery was that Riley suffered an injury at home in bed on November 20 and that Riley was entitled to a presumption that this injury was "employment-bred." 12 Section 20(a), 44 Stat. (part 2) 1436, provides that "[i]n any proceeding for the enforcement of a claim for compensation under this Act it shall be presumed, in the absence of substantial evidence to the contrary . . . [t]hat the claim comes within the provisions of this Act." The coverage of the presumption is debatable,5 but one thing is clear: the presumption applies to the claim. Even if a claimant has an unfettered right to amend his claim to conform to the proof, the presumption by its terms cannot apply to a claim that has never been made. 13 Section 13 of the Act, 33 U.S.C. § 913, provides that a claimant must timely file a claim with the Deputy Commissioner. The content of the claim is not specified in that section. But § 12(b), 33 U.S.C. § 912(b), requires that the claimant timely give the Deputy Commissioner and his employer notice of his injury, and provides further that "[s]uch notice . . . shall contain . . . a statement of the time, place, nature, and cause of the injury."6 The claim, like the notice required by § 12 and like the pleadings required in any type of litigation, serves the purposes of notifying the adverse party of the allegations and of confining the issues to be tried and adjudicated.7 14 In Riley's claim, he alleged that he he suffered an accidental injury in the course of his employment on November 19. No claim has ever been made that the "injury" occurred at home and that it was somehow "employment-bred." Even if such a vague claim stated a prima facie case of compensability, the statutory presumption does not require the administrative law judge to address and the employer to rebut every conceivable theory of recovery. At least when the claimant is represented by counsel,8 as Riley was, there is no reason to depart from the specific statutory direction that a claim be made and that the presumption, however construed, attach to the claim. II 15 The Court of Appeals' second error was its incorrect use of the term "injury." The court stated that Riley's attack of pain in the early morning of November 20 was an "injury" compensable under the Act if the employer did not disprove by substantial evidence that the "injury" was "employment-bred." The fact that " 'something unexpectedly goes wrong with the human frame,' " 200 U.S.App.D.C., at 405, 627 F.2d, at 458 (quoting Wheatley v. Adler, 132 U.S.App.D.C. 177, 183, 407 F.2d 307, 313 (1968)), however, does not establish an "injury" within the meaning of the Act. The mere existence of a physical impairment is plainly insufficient to shift the burden of proof to the employer. 16 Section 3(a) provides that "[c]ompensation shall be payable under this Act in respect of disability . . . of an employee, but only if the disability . . . results from an injury." 44 Stat. (part 2) 1426, as amended, 33 U.S.C. § 903(a). Injury is defined as an "accidental injury . . . arising out of and in the course of employment." 33 U.S.C. § 902(2). Arising "out of" and "in the course of" employment are separate elements: the former refers to injury causation; the latter refers to the time, place, and circumstances of the injury.9 Not only must the injury have been caused by the employment, it also must have arisen during the employment. 17 A prima facie "claim for compensation," to which the statutory presumption refers, must at least allege an injury that arose in the course of employment as well as out of employment.10 The "injury" noticed by the Court of Appeals, however, arose in bed, not in the course of employment. Even if the Court of Appeals simply mislabeled the early morning attack of pain as the "injury" itself rather than as a manifestation of an earlier injury, the claim envisioned by the Court of Appeals did not allege any facts that would establish that Riley suffered an injury that arose in the course of employment. The statutory presumption is no substitute for the allegations necessary to state a prima facie case. III 18 Riley's claim stated a prima facie case of compensability; if the Administrative Law Judge had believed Riley's allegations, he would have found that Riley's attack of pain in the early morning of November 20 was caused by an injury suffered when Riley was lifting duct work on the job on November 19. The judge, however, disbelieved Riley's allegations and marshaled substantial evidence to support his findings. The statutory presumption did not require him to adjudicate any claim that was not made, and the Court of Appeals erred in remanding for that purpose. Nor could the statutory presumption have aided Riley had he made the claim envisioned by the Court of Appeals—that he suffered an "injury" at home—for such a claim omits the requirement that a compensable injury arise in the course of employment. 19 The judgment of the Court of Appeals is reversed. 20 It is so ordered. 21 Justice O'CONNOR took no part in the consideration or decision of this case. 22 Justice BRENNAN, with whom Justice MARSHALL joins, dissenting. 23 * Section 20(a) of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 920(a), provides that "it shall be presumed, in the absence of substantial evidence to the contrary . . . [t]hat [a] claim [for compensation] comes within the provisions of this chapter." The central issue before us is whether this provision requires the employer in a compensation hearing to offer "substantial evidence" refuting the existence of a causal relationship between a compensation claimant's injury and his employment. The question has been fully briefed and argued, but the Court does not address it. For me, however, the answer is clear and controls the proper disposition of this case. 24 By its terms, and quite in contrast to the practice in judicial proceedings, § 20(a) requires the employer to take the initial steps to disprove his liability. This preliminary shifting of the burden to the employer exemplifies the "humanitarian nature of the Act," O'Keeffe v. Smith Associates, 380 U.S. 359, 362, 85 S.Ct. 1012, 1014, 13 L.Ed.2d 895 (1965) (per curiam), and the "strong legislative policy favoring awards in arguable cases," Wheatley v. Adler, 132 U.S.App.D.C. 177, 183, 407 F.2d 307, 313 (1968) (en banc). Section 20(a) is clearly broad enough to encompass the question of causation. "The statutory presumption applies as much to the nexus between an employee's malady and his employment activities as it does to any other aspect of a claim." In re District of Columbia Workmen's Compensation Act, 180 U.S.App.D.C. 216, 223, 554 F.2d 1075, 1082 (1976). To defeat a claim for compensation, the employer must rebut the presumption of compensability by offering substantial evidence that the claim is not one "arising out of and in the course of employment." 33 U.S.C. §§ 902(2), 903; see Marra Bros., Inc. v. Cardillo, 154 F.2d 357 (CA3 1946). Only after the employer offers such substantial evidence does the presumption fall "out of the case." Del Vecchio v. Bowers, 296 U.S. 280, 286, 256 S.Ct. 190, 193, 80 L.Ed. 229 (1935). 25 The statutory presumption thus defines the basic agenda for the hearing before the Office of Workers' Compensation Programs (OWCP), and the factfinding required before the OWCP may deny a compensation claim. In this case, there is no serious dispute that respondent Riley suffered some disabling injury.1 See Riley v. U.S. Industries/Federal Sheet Metal, Inc., 200 U.S.App.D.C. 402, 406, n. 3, 627 F.2d 455, 459, n. 3 (1980). Riley has an arthritic neck condition, and "the pain [he] suffered . . . was due to an exacerbation of his arthritic neck condition." Id., at 405, 627 F.2d, at 458. Given the existence of this condition, and the statutory presumption, the relevant inquiry was whether the employer had shown that the condition was not sufficiently work-related to render the employer accountable.2 No such finding was ever entered. Rather, the Administrative Law Judge and the Benefits Review Board focused exclusively on the testimony of Riley and his co-worker that something happened to Riley while lifting duct work on November 19, 1975, causing an immediate pain in his neck. The Administrative Law Judge concluded only that no such incident occurred; the Benefits Review Board affirmed that finding. 26 Had the Administrative Law Judge credited the testimony of Riley with respect to the November 19 incident, it would surely have strengthened Riley's position that the exacerbation of his arthritic neck condition was work-related. But the finding that this incident did not occur hardly demonstrates that Riley's disability did not arise out of and in the course of employment. An injury need not be traceable to a single event at work in order to be compensable. "Even if the asserted work-related incident had never occurred, the injuries suffered by the claimant might nevertheless have been 'employment bred.' "3 Id., at 406, 627 F.2d, at 459. Absent a finding excluding this possibility, compensation could not be denied. In addition, the failure of the Administrative Law Judge to focus on the broader issue of the injury's work-relatedness suggests that he may have failed to conduct the proceedings with proper attentiveness to the basic issue in a case such as this: namely, had the claimant been disabled as a result of his employment? Because the agency did not make the crucial finding, the Court of Appeals quite properly remanded this case so that the necessary determination could be made. II 27 Rather than allow a remand so that the normal process of administrative adjudication might run its course, the Court discerns a dispositive procedural requirement within the Act. The Court places its emphasis on the language of § 20(a): 28 "In any proceeding for the enforcement of a claim for compensation under this Act it shall be presumed, in the absence of substantial evidence to the contrary . . . [t]hat the claim comes within the provisions of this Act." (Emphasis added.) 29 Unremarkably, the Court reads this language as applying the presumption to the "claim for compensation." But quite remarkably, and without any support in precedent or the language of the Act, the Court construes the words "claim for compensation" to mean some sort of legal document, or at least some stated theory, setting forth a prima facie case for compensation, upon which all further proceedings must be based, and to which the presumption may attach. 30 The Court appears to glean its understanding of the word "claim" from the meaning assigned to the term "claim for relief" by Rule 8(a) of the Federal Rules of Civil Procedure. The Court concedes, as it must, that this understanding of the word "claim" finds no direct authority in the LHWCA itself. The Act does require the employee to file a timely "claim" with the Deputy Commissioner. 33 U.S.C. § 913(a). See ante, at 613. But it is clear that the referred-to "claim" is nothing more than a simple request for payment,4 carrying with it the implicit assertion of an entitlement to compensation. To the extent an allegation of "time, place, nature, and cause of injury" is statutorily required, it is only in connection with the notice to the employer referred to by § 12.5 33 U.S.C. § 912. 31 Moreover, the Court's reliance on a written pleading requirement is wholly out of step with the sensible informality with which the Act is administered.6 Under the present regime of administrative enforcement, issues are not narrowed through pleadings, but rather through a mixture of formal and informal prehearing procedures. 20 CFR §§ 702.311-702.317 (1981). The regulations governing the administration of the Act reflect the method chosen by the agency charged with administering the Act for addressing the practical problems of issue narrowing that inevitably arise in the course of administrative proceedings. In addition to the prehearing conference report, which sets forth the issues for the hearing, the parties are required to submit a prehearing statement defining the issues to be considered. See § 702.317. Nevertheless, the employee's failure to raise a particular issue at the prehearing conference, or in his prehearing statement, does not preclude him from raising that issue at the formal hearing. See § 702.336(a). In addition, "[a]t any time prior to the filing of the compensation order . . . the administrative law judge may in his discretion" reopen the hearing to consider a new issue. § 702.336(b).7 32 Apparently the Court is of the view that its imported definition of "claim" is necessary to protect employers from being called into a compensation hearing without any warning of the basis upon which compensation is sought; on this argument, the employer would otherwise be forced to offer evidence refuting every conceivable basis upon which an employee's claim might be grounded. I do not share the Court's fear. The Act already contains sufficient accommodation to such legitimate employer concerns: in the form of a statutory notice requirement, in the practical manner in which the presumption of compensability has historically been applied, and in the good-sense application of agency regulations and case management principles by the administrative officials charged with the execution of this Act's provisions. In sum, I am confident, as the Court apparently is not, that any legitimate claim of surprise by the employer in this or in any other case may be fairly considered within the framework of the governing regulations, and resolved in a manner that effectuates the humanitarian purposes of this Act. Rather than rely on some fictive legal analysis to dispose of the case "as a matter of law," by intertwining the problem of notice with the § 20(a) presumption, I would leave all such questions of proof and notice for the agency on remand, as did the Court of Appeals. III 33 As Justice Douglas once had occasion to remind us, "[t]he problems under this Act should rest mainly with the Courts of Appeals." O'Keeffe v. Smith Associates, 380 U.S., at 371, 85 S.Ct., at 1019 (dubitante). The Court's treatment of the relatively simple issues raised by the present case underscores the wisdom of that counsel of deference. The Court of Appeals concluded below that the relevant issues were never resolved by the Administrative Law Judge. I can hardly disagree. Therefore, I dissent. 1 "Injury" and "statutory presumption of compensability" are terms employed by the Court of Appeals. See Riley v. U. S. Industries/Federal Sheet Metal, Inc., 200 U.S.App.D.C. 402, 627 F.2d 455 (1980). As we explain below, the use of the term "injury" to describe Riley's early morning attack of pain is incorrect. We do not decide the scope of the § 20(a) presumption, or, a fortiori, the appropriateness of the Court of Appeals' characterization of it. 2 Apparently, it is undisputed that Riley is permanently and totally disabled. Brief for Respondent Riley, n. 5. 3 The form continues with a further instruction: "Relate the events which resulted in the injury or occupational disease. Tell what the injured was doing at the time of the accident. Tell what happened and how it happened. Name any objects or substances involved and tell how they were involved. Give full details on all factors which led or contributed to the accident. If more space is needed, continue on reverse." App. 111. 4 The cases cited by the Court of Appeals do not support this proposition. In Butler v. District Parking Management Co., 124 U.S.App.D.C. 195, 363 F.2d 682 (1966), the claimant became ill at work and the illness was diagnosed as a schizophrenic reaction. In Wheatley v. Adler, 132 U.S.App.D.C. 177, 407 F.2d 307 (1968), the employee collapsed from a heart attack at work. In Mitchell v. Woodworth, 146 U.S.App.D.C. 21, 449 F.2d 1097 (1971), the employee died of a cerebral vascular accident shortly after collapsing at work. 5 We need not resolve that debate in this case. It seems fair to assume, however, that the § 20(a) presumption is of the same nature as the presumption created by § 20(d) of the Act, 33 U.S.C. § 920(d), as construed in Del Vecchio v. Bowers, 296 U.S. 280, 285-287, 56 S.Ct. 190, 192-93, 80 L.Ed. 229, and the presumption defined in Rule 301 of the Federal Rules of Evidence. See also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207. 6 "This statement must be more than a mere declaration that the employee has received an injury or is suffering from an illness that is related to his employment; it must contain enough details about the nature and extent of the injury or disease to allow the employer to conduct a prompt and complete investigation of the claim so that no prejudice will ensue." 1A E. Jhraid, A. Sann, N. Golden, & B. Chase, Benedict on Admiralty § 71, p. 4-5 (7th ed. 1981). 7 See generally F. James & G. Hazard, Civil Procedure § 2.1 (2d ed. 1977). Of course, the workmen's compensation process is much more simplified than modern civil litigation. Indeed, this is one of the hallmarks of the system: "The adjective law of workmen's compensation, like the substantive, takes its tone from the beneficent and remedial character of the legislation. Procedure is generally summary and informal. . . . The whole idea is to get away from the cumbersome procedures and technicalities of pleading, and to reach a right decision by the shortest and quickest possible route. . . . On the other hand, as every lawyer knows, there is a point beyond which the sweeping-aside of 'technicalities' cannot go, since evidentiary and procedural rules usually have an irreducible hard core of necessary function that cannot be dispensed with in any orderly investigation of the merits of a case." 3 A. Larson, The Law of Workmen's Compensation § 78.10, p. 15-2 (1976). Professor Larson writes that an informal substitute for a claim may be acceptable if it "identif[ies] the claimant, indicate[s] that a compensable injury has occurred, and convey[s] the idea that compensation is expected," id., § 78.11, p. 15-9; that "considerable liberality is usually shown in allowing amendment of pleadings to correct . . . defects," unless the "effect is one of undue surprise or prejudice to the opposing party," id., at 15-11; and that "wide latitude is allowed" as to variance between pleading and proof, "[b]ut if the variance is so great that the defendant is prejudiced by having to deal at the hearing with an injury entirely different from the one pleaded, the variance may be held fatal," id., at 15-13—15-14. Riley had the benefit of these liberal pleading rules; nonetheless, the Court of Appeals applied the statutory presumption to a claim that was not fairly supported by the existing claim or by the evidentiary record. As Professor Larson warns, "[n]o amount of informality can alter the elementary requirement that the claimant allege and prove the substance of all essential elements in his case." Id., at 15-12. 8 "If the employer or carrier declines to pay any compensation on or before the thirtieth day after receiving written notice of a claim for compensation having been filed from the deputy commissioner, on the ground that there is no liability for compensation within the provisions of this chapter and the person seeking benefits shall thereafter have utilized the services of an attorney at law in the successful prosecution of his claim, there shall be awarded, in addition to the award of compensation, in a compensation order, a reasonable attorney's fee against the employer or carrier in an amount approved by the deputy commissioner, Board, or court, as the case may be, which shall be paid directly by the employer or carrier to the attorney for the claimant in a lump sum after the compensation order becomes final." 33 U.S.C. § 928(a). 9 See, e.g., Ward & Gow v. Krinsky, 259 U.S. 503, 42 S.Ct. 529, 66 L.Ed. 1033; Thom v. Sinclair, [1917] A.C. 127; 1A Benedict on Admiralty, supra, § 43; 1 A. Larson, supra, § 6.10, at 3-2—3-3 (1978). 10 The Act was enacted to create a federal workmen's compensation statute for maritime employments after this Court held that state workmen's compensation statutes constitutionally could not apply to injured maritime workers. See generally Nogueira v. New York, N. H. & H. R. Co., 281 U.S. 128, 50 S.Ct. 303, 74 L.Ed. 754. Workmen's compensation legislation has never been intended to provide life or disability insurance for covered employees. The required connection between the death or disability and employment distinguishes the workmen's compensation program from such an insurance program, and the separate requirements that the injury arise out of and in the course of employment are the means for assuring, to the extent possible, that the work connection is proved. See W. Dodd, Administration of Workmen's Compensation 681 (1936); see generally Cudahy Packing Co. v. Parramore, 263 U.S. 418, 422-424, 44 S.Ct. 153, 154, 68 L.Ed. 366. 1 It may be that the opinion for the Court of Appeals suffered from failing to distinguish between the use of the term "injury" in its ordinary meaning, and in its specialized meaning under the Act. See 33 U.S.C. § 902(2). But there is absolutely no basis for the suggestion in Part II of the Court's opinion that the Court of Appeals thought it sufficient to ground a compensation claim on an "injury" that "arose in bed, not in the course of employment." Ante, at 616. The suggestion is plainly wrong; virtually every aspect of the opinion for the Court of Appeals reaffirms that the issue before the Administrative Law Judge and the Benefits Review Board was whether there existed some causal connection between the claimant's disability and his employment. 2 In practice, the two tests of "arising out of" and "in the course of" tend to merge into a single determination of work-relatedness. See 1A A. Larson, The Law of Workmen's Compensation §§ 29.00-29.10, pp. 5-354—5-357 (1979). The dissenting member of the Benefits Review Board Panel thus properly described "the real issue in this case" as "whether claimant's injury is causally related to his employment." 9 BRBS 936, 940 (1979). 3 It is surely plausible that there was a causal relation between the exacerbation of Riley's arthritic neck condition and the overhead sheet metal duct work that he was engaged in until the night he awoke in bed in pain. But however logical this connection might be in some lay sense, it could hardly assure Riley of recovery. The term "substantial" is relative, and the quantum and type of evidence required of the employer correspond to the specificity of the claimant's evidence and allegations. The evidence necessary to overcome the presumption is least when the claim rests—as this one apparently did once the testimony respecting the November 19 accident was rejected—on little more than some arguable link between the disabling condition and the nature of the work. There appears to be little in the abbreviated record before this Court directly supporting this broader theory of recovery. Although one physician testified that "[t]he man is certainly disabled from working," App. 130, this statement was made in the course of questioning about the possible effects of the alleged November 19 incident. Another doctor, describing Riley's condition shortly after he entered the hospital, noted: "[M]ost of his work is overhead type and involves quite a bit of hyperextention of the neck. That means that most of his work he will have to do with his neck bending upwards." Id., at 158. That same doctor, however, referred repeatedly to Riley's assertion that he felt pain as a result of bending or twisting his neck while lifting duct work in November 1975, and rendered his diagnosis on that basis. See id., at 162-169. Although Riley hardly proved his theory by this medical evidence, given the nature of the injury and the nature of his work, Riley clearly made the "initial demonstration of employment-connection [that] will give the presumption a foothold." 1 A. Larson, supra, §§ 10.33, at 3-121 (1978). 4 This definition of "claim" comports with its accustomed meaning in the context of comparable compensation statutes. For example, "claim" is defined for purposes of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1976 ed. and Supp.IV), as "a written assertion of entitlement to benefits under [the Act], submitted in a form and manner authorized by the provisions of this subchapter." 20 CFR § 725.101(a)(16) (1981). See also 20 CFR § 10.5(a)(7) (1981) (Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.). 5 The Court's reliance on the notice requirement of § 12 to suggest that the claim encompass some allegation of "time, place, and manner," so that the Court can in turn conclude that the statutory presumption applies to what is alleged in the "claim," is a patchwork job. The "claim" is something entirely apart from the § 12 notice. Indeed, § 12(d) employs the very distinction that the Court seeks to blur: "Failure to give such notice shall not bar any claim under this chapter" where the employer had actual notice, the deputy commissioner excuses such notice, or where no objection was raised to the failure "before the Deputy Commissioner at the first hearing of a claim for compensation . . . ." 33 U.S.C. § 912(d). 6 For example, the regulations provide that "[t]he order in which evidence and allegations shall be presented and the procedures at the hearings generally . . . shall be in the discretion of the administrative law judge and of such nature as to afford the parties a reasonable opportunity for a fair hearing." 20 CFR § 702.338 (1981). That same regulation provides that "[i]f the administrative law judge believes that there is relevant and material evidence available which has not been presented at the hearing, he may . . . at any time, prior to the filing of the compensation order, reopen the hearing for the receipt of such evidence." 7 Although I do not profess expertise in the administration of the LHWCA, it does seem to me that this provision might have relevance in a case, such as the present one, where the administrative law judge intends to reject the claimant's principal theory of the case, but where a second theory should be more fully explored before the question of compensation is finally determined. Of course, I would leave questions regarding the application of this and all other regulations governing LHWCA proceedings for the Review Board to resolve on remand. See also 20 CFR § 702.336(a) (1981).

78

455 U.S. 745 102 S.Ct. 1388 71 L.Ed.2d 599 John SANTOSKY II and Annie Santosky, Petitionersv.Bernhardt S. KRAMER, Commissioner, Ulster County Department of Social Services, et al. No. 80-5889. Argued Nov. 10, 1981. Decided March 24, 1982. Syllabus Under New York law, the State may terminate, over parental objection, the rights of parents in their natural child upon a finding that the child is "permanently neglected." The New York Family Court Act (§ 622) requires that only a "fair preponderance of the evidence" support that finding. Neglect proceedings were brought in Family Court to terminate petitioners' rights as natural parents in their three children. Rejecting petitioners' challenge to the constitutionality of § 622's "fair preponderance of the evidence" standard, the Family Court weighed the evidence under that standard and found permanent neglect. After a subsequent dispositional hearing, the Family Court ruled that the best interests of the children required permanent termination of petitioners' custody. The Appellate Division of the New York Supreme Court affirmed, and the New York Court of Appeals dismissed petitioners' appeal to that court. Held: 1. Process is constitutionally due a natural parent at a state-initiated parental rights termination proceeding. Pp. 752-757. (a) The fundamental liberty interest of natural parents in the care, custody, and management of their child is protected by the Fourteenth Amendment, and does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. A parental rights termination proceeding interferes with that fundamental liberty interest. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures. Pp. 752-754. (b) The nature of the process due in parental rights termination proceedings turns on a balancing of three factors: the private interests affected by the proceedings; the risk of error created by the State's chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18. In any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the public and private interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants. The minimum standard is a question of federal law which this Court may resolve. Retrospective case-by-case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evidentiary standard. Pp. 754-757. 2. The "fair preponderance of the evidence" standard prescribed by § 622 violates the Due Process Clause of the Fourteenth Amendment. Pp. 758-768. (a) The balance of private interests affected weighs heavily against use of such a standard in parental rights termination proceedings, since the private interest affected is commanding and the threatened loss is permanent. Once affirmed on appeal, a New York decision terminating parental rights is final and irrevocable. Pp. 758-761. (b) A preponderance standard does not fairly allocate the risk of an erroneous factfinding between the State and the natural parents. In parental rights termination proceedings, which bear many of the indicia of a criminal trial, numerous factors combine to magnify the risk of erroneous factfinding. Coupled with the preponderance standard, these factors create a significant prospect of erroneous termination of parental rights. A standard of proof that allocates the risk of error nearly equally between an erroneous failure to terminate, which leaves the child in an uneasy status quo, and an erroneous termination, which unnecessarily destroys the natural family, does not reflect properly the relative severity of these two outcomes. Pp. 761-766. (c) A standard of proof more strict than preponderance of the evidence is consistent with the two state interests at stake in parental rights termination proceedings—a parens patriae interest in preserving and promoting the child's welfare and a fiscal and administrative interest in reducing the cost and burden of such proceedings. Pp. 766-768. 3. Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence. A "clear and convincing evidence" standard adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process. Determination of the precise burden equal to or greater than that standard is a matter of state law properly left to state legislatures and state courts. Pp. 768-770. 75 App.Div.2d 910, 427 N.Y.S.2d 319, vacated and remanded. Martin Guggenheim, New York City, for petitioners. Stephen Scavuzzo, Washington, D. C., for respondents, pro hac vice, by special leave of Court. Justice BLACKMUN delivered the opinion of the Court. 1 Under New York law, the State may terminate, over parental objection, the rights of parents in their natural child upon a finding that the child is "permanently neglected." N.Y.Soc.Serv.Law §§ 384-b.4.(d), 384-b.7.(a) (McKinney Supp.1981-1982) (Soc.Serv.Law). The New York Family Court Act § 622 (McKinney 1975 and Supp.1981-1982) (Fam.Ct.Act) requires that only a "fair preponderance of the evidence" support that finding. Thus, in New York, the factual certainty required to extinguish the parent-child relationship is no greater than that necessary to award money damages in an ordinary civil action. 2 Today we hold that the Due Process Clause of the Fourteenth Amendment demands more than this. Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence. 3 * A. 4 New York authorizes its officials to remove a child temporarily from his or her home if the child appears "neglected," within the meaning of Art. 10 of the Family Court Act. See §§ 1012(f), 1021-1029. Once removed, a child under the age of 18 customarily is placed "in the care of an authorized agency," Soc.Serv.Law § 384-b.7.(a), usually a state institution or a foster home. At that point, "the state's first obligation is to help the family with services to . . . reunite it. . . ." § 384-b.1.(a)(iii). But if convinced that "positive, nurturing parent-child relationships no longer exist," § 384-b.1.(b), the State may initiate "permanent neglect" proceedings to free the child for adoption. 5 The State bifurcates its permanent neglect proceeding into "fact-finding" and "dispositional" hearings. Fam.Ct.Act §§ 622, 623. At the factfinding stage, the State must prove that the child has been "permanently neglected," as defined by Fam.Ct.Act §§ 614.1.(a)-(d) and Soc.Serv.Law § 384-b.7.(a). See Fam.Ct.Act § 622. The Family Court judge then determines at a subsequent dispositional hearing what placement would serve the child's best interests. §§ 623, 631. 6 At the factfinding hearing, the State must establish, among other things, that for more than a year after the child entered state custody, the agency "made diligent efforts to encourage and strengthen the parental relationship." Fam.Ct.Act §§ 614.1.(c), 611. The State must further prove that during that same period, the child's natural parents failed "substantially and continuously or repeatedly to maintain contact with or plan for the future of the child although physically and financially able to do so." § 614.1(d). Should the State support its allegations by "a fair preponderance of the evidence," § 622, the child may be declared permanently neglected. § 611. That declaration empowers the Family Court judge to terminate permanently the natural parents' rights in the child. §§ 631(c), 634. Termination denies the natural parents physical custody, as well as the rights ever to visit, communicate with, or regain custody of the child.1 7 New York's permanent neglect statute provides natural parents with certain procedural protections.2 But New York permits its officials to establish "permanent neglect" with less proof than most States require. Thirty-five States, the District of Columbia, and the Virgin Islands currently specify a higher standard of proof, in parental rights termination proceedings, than a "fair preponderance of the evidence."3 The only analogous federal statute of which we are aware permits termination of parental rights solely upon "evidence beyond a reasonable doubt." Indian Child Welfare Act of 1978, Pub.L. 95-608, § 102(f), 92 Stat. 3072, 25 U.S.C. § 1912(f) (1976 ed., Supp.IV). The question here is whether New York's "fair preponderance of the evidence" standard is constitutionally sufficient. B 8 Petitioners John Santosky II and Annie Santosky are the natural parents of Tina and John III. In November 1973, after incidents reflecting parental neglect, respondent Kramer, Commissioner of the Ulster County Department of Social Services, initiated a neglect proceeding under Fam.Ct.Act § 1022 and removed Tina from her natural home. About 10 months later, he removed John III and placed him with foster parents. On the day John was taken, Annie Santosky gave birth to a third child, Jed. When Jed was only three days old, respondent transferred him to a foster home on the ground that immediate removal was necessary to avoid imminent danger to his life or health. 9 In October 1978, respondent petitioned the Ulster County Family Court to terminate petitioners' parental rights in the three children.4 Petitioners challenged the constitutionality of the "fair preponderance of the evidence" standard specified in Fam.Ct.Act § 622. The Family Court Judge rejected this constitutional challenge, App. 29-30, and weighed the evidence under the statutory standard. While acknowledging that the Santoskys had maintained contact with their children, the judge found those visits "at best superficial and devoid of any real emotional content." Id., at 21. After deciding that the agency had made " 'diligent efforts' to encourage and strengthen the parental relationship," id., at 30, he concluded that the Santoskys were incapable, even with public assistance, of planning for the future of their children. Id., at 33-37. The judge later held a dispositional hearing and ruled that the best interests of the three children required permanent termination of the Santoskys' custody.5 Id., at 39. 10 Petitioners appealed, again contesting the constitutionality of § 622's standard of proof.6 The New York Supreme Court, Appellate Division, affirmed, holding application of the preponderance-of-the-evidence standard "proper and constitutional." In re John AA, 75 App.Div.2d 910, 427 N.Y.S.2d 319, 320 (1980). That standard, the court reasoned, "recognizes and seeks to balance rights possessed by the child . . . with those of the natural parents. . . ." Ibid. 11 The New York Court of Appeals then dismissed petitioners' appeal to that court "upon the ground that no substantial constitutional question is directly involved." App. 55. We granted certiorari to consider petitioners' constitutional claim. 450 U.S. 993, 101 S.Ct. 1694, 68 L.Ed.2d 192 (1981). II 12 Last Term in Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), this Court, by a 5-4 vote, held that the Fourteenth Amendment's Due Process Clause does not require the appointment of counsel for indigent parents in every parental status termination proceeding. The case casts light, however, on the two central questions here—whether process is constitutionally due a natural parent at a State's parental rights termination proceeding, and, if so, what process is due. 13 In Lassiter, it was "not disputed that state intervention to terminate the relationship between [a parent] and [the] child must be accomplished by procedures meeting the requisites of the Due Process Clause." Id., at 37, 101 S.Ct., at 2165 (first dissenting opinion); see id., at 24-32, 101 S.Ct., at 2158-2162 (opinion of the Court); id., at 59-60, 101 S.Ct., at 2176 (STEVENS, J., dissenting). See also Little v. Streater, 452 U.S. 1, 13, 101 S.Ct. 2202, 2209, 68 L.Ed.2d 627 (1981). The absence of dispute reflected this Court's historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (1978); Smith v. Organization of Foster Families, 431 U.S. 816, 845, 97 S.Ct. 2094, 2110, 53 L.Ed.2d 14 (1977); Moore v. East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52 L.Ed.2d 531 (1977) (plurality opinion); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974); Stanley v. Illinois, 405 U.S. 645, 651-652, 92 S.Ct. 1208, 1212-1213, 31 L.Ed.2d 551 (1972); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 573-574, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). 14 The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.7 15 In Lassiter, the Court and three dissenters agreed that the nature of the process due in parental rights termination proceedings turns on a balancing of the "three distinct factors" specified in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976): the private interests affected by the proceeding; the risk of error created by the State's chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure. See 452 U.S., at 27-31, 101 S.Ct., at 2159-2162; id., at 37-48, 101 S.Ct., at 2164-2171 (first dissenting opinion). But see id., at 59-60, 101 S.Ct., at 2176 (STEVENS, J., dissenting). While the respective Lassiter opinions disputed whether those factors should be weighed against a presumption disfavoring appointed counsel for one not threatened with loss of physical liberty, compare 452 U.S., at 31-32, 101 S.Ct., at 2161-2162, with id., at 41, and n. 8, 101 S.Ct., at 2167, and n. 8 (first dissenting opinion), that concern is irrelevant here. Unlike the Court's right-to-counsel rulings, its decisions concerning constitutional burdens of proof have not turned on any presumption favoring any particular standard. To the contrary, the Court has engaged in a straight-forward consideration of the factors identified in Eldridge to determine whether a particular standard of proof in a particular proceeding satisfies due process. 16 In Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), the Court, by a unanimous vote of the participating Justices, declared: "The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to 'instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.' " Id., at 423, 99 S.Ct. at 1808, quoting In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 1075, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). Addington teaches that, in any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants. 17 Thus, while private parties may be interested intensely in a civil dispute over money damages, application of a "fair preponderance of the evidence" standard indicates both society's "minimal concern with the outcome," and a conclusion that the litigants should "share the risk of error in roughly equal fashion." 441 U.S., at 423, 99 S.Ct., at 1808. When the State brings a criminal action to deny a defendant liberty or life, however, "the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment." Ibid. The stringency of the "beyond a reasonable doubt" standard bespeaks the "weight and gravity" of the private interest affected, id., at 427, 99 S.Ct., at 1810, society's interest in avoiding erroneous convictions, and a judgment that those interests together require that "society impos[e] almost the entire risk of error upon itself." Id., at 424, 99 S.Ct., at 1808. See also In re Winship, 397 U.S., at 372, 90 S.Ct., at 1076 (Harlan, J., concurring). 18 The "minimum requirements [of procedural due process] being a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action." Vitek v. Jones, 445 U.S. 480, 491, 100 S.Ct. 1254, 1262, 63 L.Ed.2d 552 (1980). See also Logan v. Zimmerman Brush Co., 455 U.S. 422, 432, 102 S.Ct. 1148, 1155-1156, 71 L.Ed.2d 265 (1982). Moreover, the degree of proof required in a particular type of proceeding "is the kind of question which has traditionally been left to the judiciary to resolve." Woodby v. INS, 385 U.S. 276, 284, 87 S.Ct. 483, 487, 17 L.Ed.2d 362 (1966).8 "In cases involving individual rights, whether criminal or civil, '[t]he standard of proof [at a minimum] reflects the value society places on individual liberty.' " Addington v. Texas, 441 U.S., at 425, 99 S.Ct., at 1809, quoting Tippett v. Maryland, 436 F.2d 1153, 1166 (CA4 1971) (opinion concurring in part and dissenting in part), cert. dism'd sub nom. Murel v. Baltimore City Criminal Court, 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972). 19 This Court has mandated an intermediate standard of proof "clear and convincing evidence"—when the individual interests at stake in a state proceeding are both "particularly important" and "more substantial than mere loss of money." Addington v. Texas, 441 U.S., at 424, 99 S.Ct., at 1808. Notwithstanding "the state's 'civil labels and good intentions,' " id., at 427, 99 S.Ct. at 1810, quoting In re Winship, 397 U.S., at 365-366, 90 S.Ct., at 1073-1074, the Court has deemed this level of certainty necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with "a significant deprivation of liberty" or "stigma." 441 U.S., at 425, 426, 99 S.Ct., at 1808, 1809. See, e. g., Addington v. Texas, supra (civil commitment); Woodby v. INS, 385 U.S., at 285, 87 S.Ct., at 487 (deportation); Chaunt v. United States, 364 U.S. 350, 353, 81 S.Ct. 147, 149, 5 L.Ed.2d 120 (1960) (denaturalization); Schneiderman v. United States, 320 U.S. 118, 125, 159, 63 S.Ct. 1333, 1336, 1353, 87 L.Ed. 1796 (1943) (denaturalization). 20 In Lassiter, to be sure, the Court held that fundamental fairness may be maintained in parental rights termination proceedings even when some procedures are mandated only on a case-by-case basis, rather than through rules of general application. 452 U.S., at 31-32, 101 S.Ct., at 2161-2162 (natural parent's right to court-appointed counsel should be determined by the trial court, subject to appellate review). But this Court never has approved case-by-case determination of the proper standard of proof for a given proceeding. Standards of proof, like other "procedural due process rules[,] are shaped by the risk of error inherent in the truth-finding process as applied to thegenerality of cases, not the rare exceptions." Mathews v. Eldridge, 424 U.S., at 344, 96 S.Ct., at 907 (emphasis added). Since the litigants and the factfinder must know at the outset of a given proceeding how the risk of error will be allocated, the standard of proof necessarily must be calibrated in advance. Retrospective case-by-case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evidentiary standard.9 III 21 In parental rights termination proceedings, the private interest affected is commanding; the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring that standard is comparatively slight. Evaluation of the three Eldridge factors compels the conclusion that use of a "fair preponderance of the evidence" standard in such proceedings is inconsistent with due process. A. 22 "The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be 'condemned to suffer grievous loss.' " Goldberg v. Kelly, 397 U.S. 254, 262-263, 90 S.Ct. 1011, 1017-18, 25 L.Ed.2d 287 (1970), quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). Whether the loss threatened by a particular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the factfinder turns on both the nature of the private interest threatened and the permanency of the threatened loss. 23 Lassiter declared it "plain beyond the need for multiple citation" that a natural parent's "desire for and right to 'the companionship, care, custody, and management of his or her children' " is an interest far more precious than any property right. 452 U.S., at 27, 101 S.Ct., at 2160, quoting Stanley v. Illinois, 405 U.S., at 651, 92 S.Ct., at 1212. When the State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it. "If the State prevails, it will have worked a unique kind of deprivation. . . . A parent's interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one." 452 U.S., at 27, 101 S.Ct., at 2160. 24 In government-initiated proceedings to determine juvenile delinquency, In re Winship, supra ; civil commitment, Addington v. Texas, supra; deportation,Woodby v. INS, supra ; and denaturalization, Chaunt v. United States, supra, and Schneiderman v. United States, supra, this Court has identified losses of individual liberty sufficiently serious to warrant imposition of an elevated burden of proof. Yet juvenile delinquency adjudications, civil commitment, deportation, and denaturalization, at least to a degree, are all reversible official actions. Once affirmed on appeal, a New York decision terminating parental rights is final and irrevocable. See n. 1, supra. Few forms of state action are both so severe and so irreversible. 25 Thus, the first Eldridge factor—the private interest affected weighs heavily against use of the preponderance standard at a state-initiated permanent neglect proceeding. We do not deny that the child and his foster parents are also deeply interested in the outcome of that contest. But at the factfinding stage of the New York proceeding, the focus emphatically is not on them. 26 The factfinding does not purport—and is not intended—to balance the child's interest in a normal family home against the parents' interest in raising the child. Nor does it purport to determine whether the natural parents or the foster parents would provide the better home. Rather, the factfinding hearing pits the State directly against the parents. The State alleges that the natural parents are at fault. Fam.Ct.Act § 614.1.(d). The questions disputed and decided are what the State did—"made diligent efforts," § 614.1.(c)—and what the natural parents did not do—"maintain contact with or plan for the future of the child." § 614.1.(d). The State marshals an array of public resources to prove its case and disprove the parents' case. Victory by the State not only makes termination of parental rights possible; it entails a judicial determination that the parents are unfit to raise their own children.10 27 At the factfinding, the State cannot presume that a child and his parents are adversaries. After the State has established parental unfitness at that initial proceeding, the court may assume at the dispositional stage that the interests of the child and the natural parents do diverge. See Fam.Ct.Act § 631 (judge shall make his order "solely on the basis of the best interests of the child," and thus has no obligation to consider the natural parents' rights in selecting dispositional alternatives). But until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.11 Thus, at the factfinding, the interests of the child and his natural parents coincide to favor use of error-reducing procedures. 28 However substantial the foster parents' interests may be, cf. Smith v. Organization of Foster Families, 431 U.S., at 845-847, 97 S.Ct., at 2110-2111, they are not implicated directly in the factfinding stage of a state-initiated permanent neglect proceeding against the natural parents. If authorized, the foster parents may pit their interests directly against those of the natural parents by initiating their own permanent neglect proceeding. Fam.Ct.Act § 1055(d); Soc.Serv.Law §§ 384-6.3(b), 392.7.(c). Alternatively, the foster parents can make their case for custody at the dispositional stage of a state-initiated proceeding, where the judge already has decided the issue of permanent neglect and is focusing on the placement that would serve the child's best interests. Fam.Ct.Act §§ 623, 631. For the foster parents, the State's failure to prove permanent neglect may prolong the delay and uncertainty until their foster child is freed for adoption. But for the natural parents, a finding of permanent neglect can cut off forever their rights in their child. Given this disparity of consequence, we have no difficulty finding that the balance of private interests strongly favors heightened procedural protections. B 29 Under Mathews v. Eldridge, we next must consider both the risk of erroneous deprivation of private interests resulting from use of a "fair preponderance" standard and the likelihood that a higher evidentiary standard would reduce that risk. See 424 U.S., at 335, 96 S.Ct., at 903. Since the factfinding phase of a permanent neglect proceeding is an adversary contest between the State and the natural parents, the relevant question is whether a preponderance standard fairly allocates the risk of an erroneous factfinding between these two parties. 30 In New York, the factfinding stage of a state-initiated permanent neglect proceeding bears many of the indicia of a criminal trial. Cf. Lassiter v. Department of Social Services, 452 U.S., at 42-44, 101 S.Ct., at 2167-2169 (first dissenting opinion); Meltzer v. C. Buck LeCraw & Co., 402 U.S. 954, 959, 91 S.Ct. 1624, 1626, 29 L.Ed.2d 124 (1971) (Black, J., dissenting from denial of certiorari). See also dissenting opinion, post, at 777-779 (describing procedures employed at factfinding proceeding). The Commissioner of Social Services charges the parents with permanent neglect. They are served by summons. Fam.Ct.Act §§ 614, 616, 617. The factfinding hearing is conducted pursuant to formal rules of evidence. § 624. The State, the parents, and the child are all represented by counsel. §§ 249, 262. The State seeks to establish a series of historical facts about the intensity of its agency's efforts to reunite the family, the infrequency and insubstantiality of the parents' contacts with their child, and the parents' inability or unwillingness to formulate a plan for the child's future. The attorneys submit documentary evidence, and call witnesses who are subject to cross-examination. Based on all the evidence, the judge then determines whether the State has proved the statutory elements of permanent neglect by a fair preponderance of the evidence. § 622. 31 At such a proceeding, numerous factors combine to magnify the risk of erroneous factfinding. Permanent neglect proceedings employ imprecise substantive standards that leave determinations unusually open to the subjective values of the judge. See Smith v. Organization of Foster Families, 431 U.S., at 835, n. 36, 97 S.Ct., at 2105, n. 36. In appraising the nature and quality of a complex series of encounters among the agency, the parents, and the child, the court possesses unusual discretion to underweigh probative facts that might favor the parent.12 Because parents subject to termination proceedings are often poor, uneducated, or members of minority groups, id., at 833-835, such proceedings are often vulnerable to judgments based on cultural or class bias. 32 The State's ability to assemble its case almost inevitably dwarfs the parents' ability to mount a defense. No predetermined limits restrict the sums an agency may spend in prosecuting a given termination proceeding. The State's attorney usually will be expert on the issues contested and the procedures employed at the factfinding hearing, and enjoys full access to all public records concerning the family. The State may call on experts in family relations, psychology, and medicine to bolster its case. Furthermore, the primary witnesses at the hearing will be the agency's own professional caseworkers whom the State has empowered both to investigate the family situation and to testify against the parents. Indeed, because the child is already in agency custody, the State even has the power to shape the historical events that form the basis for termination.13 33 The disparity between the adversaries' litigation resources is matched by a striking asymmetry in their litigation options. Unlike criminal defendants, natural parents have no "double jeopardy" defense against repeated state termination efforts. If the State initially fails to win termination, as New York did here, see n. 4, supra, it always can try once again to cut off the parents' rights after gathering more or better evidence. Yet even when the parents have attained the level of fitness required by the State, they have no similar means by which they can forestall future termination efforts. 34 Coupled with a "fair preponderance of the evidence" standard, these factors create a significant prospect of erroneous termination. A standard of proof that by its very terms demands consideration of the quantity, rather than the quality, of the evidence may misdirect the factfinder in the marginal case. See In re Winship, 397 U.S., at 371, n. 3, 90 S.Ct., at 1076, n. 3 (Harlan, J., concurring). Given the weight of the private interests at stake, the social cost of even occasional error is sizable. 35 Raising the standard of proof would have both practical and symbolic consequences. Cf. Addington v. Texas, 441 U.S., at 426, 99 S.Ct., at 1809. The Court has long considered the heightened standard of proof used in criminal prosecutions to be "a prime instrument for reducing the risk of convictions resting on factual error." In re Winship, 397 U.S., at 363, 90 S.Ct., at 1072. An elevated standard of proof in a parental rights termination proceeding would alleviate "the possible risk that a factfinder might decide to [deprive] an individual based solely on a few isolated instances of unusual conduct [or] . . . idiosyncratic behavior." Addington v. Texas, 441 U.S., at 427, 99 S.Ct., at 1810. "Increasing the burden of proof is one way to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate" terminations will be ordered. Ibid. 36 The Appellate Division approved New York's preponderance standard on the ground that it properly "balanced rights possessed by the child . . . with those of the natural parents. . . ." 75 App.Div.2d, at 910, 427 N.Y.S.2d, at 320. By so saying, the court suggested that a preponderance standard properly allocates the risk of error between the parents and the child.14 That view is fundamentally mistaken. 37 The court's theory assumes that termination of the natural parents' rights invariably will benefit the child.15 Yet we have noted above that the parents and the child share an interest in avoiding erroneous termination. Even accepting the court's assumption, we cannot agree with its conclusion that a preponderance standard fairly distributes the risk of error between parent and child. Use of that standard reflects the judgment that society is nearly neutral between erroneous termination of parental rights and erroneous failure to terminate those rights. Cf. In re Winship, 397 U.S., at 371, 90 S.Ct., at 1076 (Harlan, J., concurring). For the child, the likely consequence of an erroneous failure to terminate is preservation of an uneasy status quo.16 For the natural parents, however, the consequence of an erroneous termination is the unnecessary destruction of their natural family. A standard that allocates the risk of error nearly equally between those two outcomes does not reflect properly their relative severity. C 38 Two state interests are at stake in parental rights termination proceedings—a parens patriae interest in preserving and promoting the welfare of the child and a fiscal and administrative interest in reducing the cost and burden of such proceedings. A standard of proof more strict than preponderance of the evidence is consistent with both interests. 39 "Since the State has an urgent interest in the welfare of the child, it shares the parent's interest in an accurate and just decision" at the factfinding proceeding. Lassiter v. Department of Social Services, 452 U.S., at 27, 101 S.Ct., at 2160. As parens patriae, the State's goal is to provide the child with a permanent home. See Soc.Serv.Law § 384-b.1.(a)(i) (statement of legislative findings and intent). Yet while there is still reason to believe that positive, nurturing parent-child relationships exist, the parens patriae interest favors preservation, not severance, of natural familial bonds.17 § 384-b.1.(a)(ii). "[T]he State registers no gain towards its declared goals when it separates children from the custody of fit parents." Stanley v. Illinois, 405 U.S., at 652, 92 S.Ct., at 1213. 40 The State's interest in finding the child an alternative permanent home arises only "when it is clear that the natural parent cannot or will not provide a normal family home for the child." Soc.Serv.Law § 384-b.1.(a)(iv) (emphasis added). At the factfinding, that goal is served by procedures that promote an accurate determination of whether the natural parents can and will provide a normal home. 41 Unlike a constitutional requirement of hearings, see, e.g., Mathews v. Eldridge, 424 U.S., at 347, 96 S.Ct., at 908, or court-appointed counsel, a stricter standard of proof would reduce factual error without imposing substantial fiscal burdens upon the State. As we have observed, 35 States already have adopted a higher standard by statute or court decision without apparent effect on the speed, form, or cost of their factfinding proceedings. See n. 3, supra. 42 Nor would an elevated standard of proof create any real administrative burdens for the State's factfinders. New York Family Court judges already are familiar with a higher evidentiary standard in other parental rights termination proceedings not involving permanent neglect. See Soc.Serv.Law §§ 384-b.3.(g), 384-b.4.(c), and 384-b.4.(e) (requiring "clear and convincing proof" before parental rights may be terminated for reasons of mental illness and mental retardation or severe and repeated child abuse). New York also demands at least clear and convincing evidence in proceedings of far less moment than parental rights termination proceedings. See, e.g., N.Y. Veh. & Traf. Law § 227.1 (McKinney Supp.1981) (requiring the State to prove traffic infractions by "clear and convincing evidence") and In re Rosenthal v. Hartnett, 36 N.Y.2d 269, 367 N.Y.S.2d 247, 326 N.E.2d 811 (1975); see also Ross v. Food Specialties, Inc., 6 N.Y.2d 336, 341, 189 N.Y.S.2d 857, 859, 160 N.E.2d 618, 620 (1959) (requiring "clear, positive and convincing evidence" for contract reformation). We cannot believe that it would burden the State unduly to require that its factfinders have the same factual certainty when terminating the parent-child relationship as they must have to suspend a driver's license. IV 43 The logical conclusion of this balancing process is that the "fair preponderance of the evidence" standard prescribed by Fam.Ct.Act § 622 violates the Due Process Clause of the Fourteenth Amendment.18 The Court noted in Addington : "The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state." 441 U.S., at 427, 99 S.Ct., at 1810. Thus, at a parental rights termination proceeding, a near-equal allocation of risk between the parents and the State is constitutionally intolerable. The next question, then, is whether a "beyond a reasonable doubt" or a "clear and convincing" standard is constitutionally mandated. 44 In Addington, the Court concluded that application of a reasonable-doubt standard is inappropriate in civil commitment proceedings for two reasons—because of our hesitation to apply that unique standard "too broadly or casually in noncriminal cases," id., at 428, 99 S.Ct., at 1810, and because the psychiatric evidence ordinarily adduced at commitment proceedings is rarely susceptible to proof beyond a reasonable doubt. Id., at 429-430, 432-433, 99 S.Ct., at 1811-1812, 1812-1813. To be sure, as has been noted above, in the Indian Child Welfare Act of 1978, Pub.L. 95-608, § 102(f), 92 Stat. 3072, 25 U.S.C. § 1912(f) (1976 ed., Supp.IV), Congress requires "evidence beyond a reasonable doubt" for termination of Indian parental rights, reasoning that "the removal of a child from the parents is a penalty as great [as], if not greater, than a criminal penalty. . . ." H.R.Rep.No. 95-1386, p. 22 (1978), U.S.Code Cong. & Admin.News 1978, pp. 7530, 7545. Congress did not consider, however, the evidentiary problems that would arise if proof beyond a reasonable doubt were required in all state-initiated parental rights termination hearings. 45 Like civil commitment hearings, termination proceedings often require the factfinder to evaluate medical and psychiatric testimony, and to decide issues difficult to prove to a level of absolute certainty, such as lack of parental motive, absence of affection between parent and child, and failure of parental foresight and progress. Cf. Lassiter v. Department of Social Services, 452 U.S., at 30, 101 S.Ct., at 2161; id., at 44-46, 101 S.Ct., at 2168-2169 (first dissenting opinion) (describing issues raised in state termination proceedings). The substantive standards applied vary from State to State. Although Congress found a "beyond a reasonable doubt" standard proper in one type of parental rights termination case, another legislative body might well conclude that a reasonable-doubt standard would erect an unreasonable barrier to state efforts to free permanently neglected children for adoption. 46 A majority of the States have concluded that a "clear and convincing evidence" standard of proof strikes a fair balance between the rights of the natural parents and the State's legitimate concerns. See n. 3, supra. We hold that such a standard adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process. We further hold that determination of the precise burden equal to or greater than that standard is a matter of state law properly left to state legislatures and state courts. Cf. Addington v. Texas, 441 U.S., at 433, 99 S.Ct., at 1813. 47 We, of course, express no view on the merits of petitioners' claims.19 At a hearing conducted under a constitutionally proper standard, they may or may not prevail. Without deciding the outcome under any of the standards we have approved, we vacate the judgment of the Appellate Division and remand the case for further proceedings not inconsistent with this opinion. 48 It is so ordered. 49 Justice REHNQUIST, with whom THE CHIEF JUSTICE, Justice WHITE, and Justice O'CONNOR join, dissenting. 50 I believe that few of us would care to live in a society where every aspect of life was regulated by a single source of law, whether that source be this Court or some other organ of our complex body politic. But today's decision certainly moves us in that direction. By parsing the New York scheme and holding one narrow provision unconstitutional, the majority invites further federal-court intrusion into every facet of state family law. If ever there were an area in which federal courts should heed the admonition of Justice Holmes that "a page of history is worth a volume of logic,"1 it is in the area of domestic relations. This area has been left to the States from time immemorial, and not without good reason. 51 Equally as troubling is the majority's due process analysis. The Fourteenth Amendment guarantees that a State will treat individuals with "fundamental fairness" whenever its actions infringe their protected liberty or property interests. By adoption of the procedures relevant to this case, New York has created an exhaustive program to assist parents in regaining the custody of their children and to protect parents from the unfair deprivation of their parental rights. And yet the majority's myopic scrutiny of the standard of proof blinds it to the very considerations and procedures which make the New York scheme "fundamentally fair." 52 * State intervention in domestic relations has always been an unhappy but necessary feature of life in our organized society. For all of our experience in this area, we have found no fully satisfactory solutions to the painful problem of child abuse and neglect. We have found, however, that leaving the States free to experiment with various remedies has produced novel approaches and promising progress. 53 Throughout this experience the Court has scrupulously refrained from interfering with state answers to domestic relations questions. "Both theory and the precedents of this Court teach us solicitude for state interests, particularly in the field of family and family-property arrangements." United States v. Yazell, 382 U.S. 341, 352, 86 S.Ct. 500, 507, 15 L.Ed.2d 404 (1966). This is not to say that the Court should blink at clear constitutional violations in state statutes, but rather that in this area, of all areas, "substantial weight must be given to the good-faith judgments of the individuals [administering a program] . . . that the procedures they have provided assure fair consideration of the . . . claims of individuals." Mathews v. Eldridge, 424 U.S. 319, 349, 96 S.Ct. 893, 909, 47 L.Ed.2d 18 (1976). 54 This case presents a classic occasion for such solicitude. As will be seen more fully in the next part, New York has enacted a comprehensive plan to aid marginal parents in regaining the custody of their child. The central purpose of the New York plan is to reunite divided families. Adoption of the preponderance-of-the-evidence standard represents New York's good-faith effort to balance the interest of parents against the legitimate interests of the child and the State. These earnest efforts by state officials should be given weight in the Court's application of due process principles. "Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts." Missouri, K. & T.R. Co. v. May, 194 U.S. 267, 270, 24 S.Ct. 638, 639, 48 L.Ed. 971 (1904).2 55 The majority may believe that it is adopting a relatively unobtrusive means of ensuring that termination proceedings provide "due process of law." In fact, however, fixing the standard of proof as a matter of federal constitutional law will only lead to further federal-court intervention in state schemes. By holding that due process requires proof by clear and convincing evidence the majority surely cannot mean that any state scheme passes constitutional muster so long as it applies that standard of proof. A state law permitting termination of parental rights upon a showing of neglect by clear and convincing evidence certainly would not be acceptable to the majority if it provided no procedures other than one 30-minute hearing. Similarly, the majority probably would balk at a state scheme that permitted termination of parental rights on a clear and convincing showing merely that such action would be in the best interests of the child. See Smith v. Organization of Foster Families, 431 U.S. 816, 862-863, 97 S.Ct. 2094, 2119, 53 L.Ed.2d 14 (1977) (Stewart, J., concurring in judgment). 56 After fixing the standard of proof, therefore, the majority will be forced to evaluate other aspects of termination proceedings with reference to that point. Having in this case abandoned evaluation of the overall effect of a scheme, and with it the possibility of finding that strict substantive standards or special procedures compensate for a lower burden of proof, the majority's approach will inevitably lead to the federalization of family law. Such a trend will only thwart state searches for better solutions in an area where this Court should encourage state experimentation. "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment." New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting). It should not do so in the absence of a clear constitutional violation. As will be seen in the next part, no clear constitutional violation has occurred in this case. II 57 As the majority opinion notes, petitioners are the parents of five children, three of whom were removed from petitioners' care on or before August 22, 1974. During the next four and one-half years, those three children were in the custody of the State and in the care of foster homes or institutions, and the State was diligently engaged in efforts to prepare petitioners for the children's return. Those efforts were unsuccessful, however, and on April 10, 1979, the New York Family Court for Ulster County terminated petitioners' parental rights as to the three children removed in 1974 or earlier. This termination was preceded by a judicial finding that petitioners had failed to plan for the return and future of their children, a statutory category of permanent neglect. Petitioners now contend, and the Court today holds, that they were denied due process of law, not because of a general inadequacy of procedural protections, but simply because the finding of permanent neglect was made on the basis of a preponderance of the evidence adduced at the termination hearing. 58 It is well settled that "[t]he requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). In determining whether such liberty or property interests are implicated by a particular government action, "we must look not to the 'weight' but to the nature of the interest at stake." Id., at 571, 92 S.Ct., at 2706 (emphasis in original). I do not disagree with the majority's conclusion that the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment. See Smith v. Organization of Foster Families, supra, at 862-863, 97 S.Ct., at 2119 (Stewart, J., concurring in judgment). "Once it is determined that due process applies, [however,] the question remains what process is due." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2595, 2600, 33 L.Ed.2d 484 (1972). It is the majority's answer to this question with which I disagree. A. 59 Due process of law is a flexible constitutional principle. The requirements which it imposes upon governmental actions vary with the situations to which it applies. As the Court previously has recognized, "not all situations calling for procedural safeguards call for the same kind of procedure." Morrissey v. Brewer, supra, at 481, 92 S.Ct., at 2600. See also Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 12, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979); Mathews v. Eldridge, 424 U.S., at 334, 96 S.Ct., at 902; Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). The adequacy of a scheme of procedural protections cannot, therefore, be determined merely by the application of general principles unrelated to the peculiarities of the case at hand. 60 Given this flexibility, it is obvious that a proper due process inquiry cannot be made by focusing upon one narrow provision of the challenged statutory scheme. Such a focus threatens to overlook factors which may introduce constitutionally adequate protections into a particular government action. Courts must examine all procedural protections offered by the State, and must assess the cumulative effect of such safeguards. As we have stated before, courts must consider "the fairness and reliability of the existing . . . procedures" before holding that the Constitution requires more. Mathews v. Eldridge, supra, 424 U.S., at 343, 96 S.Ct., at 907. Only through such a broad inquiry may courts determine whether a challenged governmental action satisfies the due process requirement of "fundamental fairness."3 In some instances, the Court has even looked to nonprocedural restraints on official action in determining whether the deprivation of a protected interest was effected without due process of law. E.g., Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). In this case, it is just such a broad look at the New York scheme which reveals its fundamental fairness.4 61 The termination of parental rights on the basis of permanent neglect can occur under New York law only by order of the Family Court. N.Y.Soc.Serv.Law (SSL) § 384-b.3.(d) (McKinney Supp.1981-1982). Before a petition for permanent termination can be filed in that court, however, several other events must first occur. 62 The Family Court has jurisdiction only over those children who are in the care of an authorized agency. N.Y.Family Court Act (FCA) § 614.1.(b) (McKinney 1975 and Supp.1981-1982). Therefore, the children who are the subject of a termination petition must previously have been removed from their parents' home on a temporary basis. Temporary removal of a child can occur in one of two ways. The parents may consent to the removal, FCA § 1021, or, as occurred in this case, the Family Court can order the removal pursuant to a finding that the child is abused or neglected.5 FCA §§ 1051, 1052. 63 Court proceedings to order the temporary removal of a child are initiated by a petition alleging abuse or neglect, filed by a state-authorized child protection agency or by a person designated by the court. FCA §§ 1031, 1032. Unless the court finds that exigent circumstances require removal of the child before a petition may be filed and a hearing held, see FCA § 1022, the order of temporary removal results from a "dispositional hearing" conducted to determine the appropriate form of alternative care. FCA § 1045. See also FCA § 1055. This "dispositional hearing" can be held only after the court, at a separate "fact-finding hearing," has found the child to be abused or neglected within the specific statutory definition of those terms. FCA §§ 1012, 1044, 1051. 64 Parents subjected to temporary removal proceedings are provided extensive procedural protections. A summons and copy of the temporary removal petition must be served upon the parents within two days of issuance by the court, FCA §§ 1035, 1036, and the parents may, at their own request, delay the commencement of the factfinding hearing for three days after service of the summons. FCA § 1048.6 The factfinding hearing may not commence without a determination by the court that the parents are present at the hearing and have been served with the petition. FCA § 1041. At the hearing itself, "only competent, material and relevant evidence may be admitted," with some enumerated exceptions for particularly probative evidence. FCA § 1046(b)(ii). In addition, indigent parents are provided with an attorney to represent them at both the factfinding and dispositional hearings, as well as at all other proceedings related to temporary removal of their child. FCA § 262(a)(i). 65 An order of temporary removal must be reviewed every 18 months by the Family Court. SSL § 392.2. Such review is conducted by hearing before the same judge who ordered the temporary removal, and a notice of the hearing, including a statement of the dispositional alternatives, must be given to the parents at least 20 days before the hearing is held. SSL § 392.4. As in the initial removal action, the parents must be parties to the proceedings, ibid., and are entitled to court-appointed counsel if indigent. FCA § 262(a). 66 One or more years after a child has been removed temporarily from the parents' home, permanent termination proceedings may be commenced by the filing of a petition in the court which ordered the temporary removal. The petition must be filed by a state agency or by a foster parent authorized by the court, SSL § 384-b.3.(b), and must allege that the child has been permanently neglected by the parents. SSL §§ 384-b.3.(d).7 Notice of the petition and the dispositional proceedings must be served upon the parents at least 20 days before the commencement of the hearing, SSL § 384-b.3.(e), must inform them of the potential consequences of the hearing, ibid., and must inform them "of their right to the assistance of counsel, including [their] right . . . to have counsel assigned by the court [if] they are financially unable to obtain counsel." Ibid. See also FCA § 262. 67 As in the initial removal proceedings, two hearings are held in consideration of the permanent termination petition. SSL § 384-b.3.(f). At the factfinding hearing, the court must determine, by a fair preponderance of the evidence, whether the child has been permanently neglected. SSL § 384-b.3.(g). "Only competent, material and relevant evidence may be admitted in a fact-finding hearing." FCA § 624. The court may find permanent neglect if the child is in the care of an authorized agency or foster home and the parents have "failed for a period of more than one year . . . substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so." SSL 384-b.7.(a).8 In addition, because the State considers its "first obligation" to be the reuniting of the child with its natural parents, SSL § 384-b.1.(iii), the court must also find that the supervising state agency has, without success, made "diligent efforts to encourage and strengthen the parental relationship." SSL § 384-b.7.(a) (emphasis added).9 68 Following the factfinding hearing, a separate, dispositional hearing is held to determine what course of action would be in "the best interests of the child." FCA § 631. A finding of permanent neglect at the fact-finding hearing, although necessary to a termination of parental rights, does not control the court's order at the dispositional hearing. The court may dismiss the petition, suspend judgment on the petition and retain jurisdiction for a period of one year in order to provide further opportunity for a reuniting of the family, or terminate the parents' right to the custody and care of the child. FCA §§ 631-634. The court must base its decision solely upon the record of "material and relevant evidence" introduced at the dispositional hearing, FCA § 624; In re "Female" M., 70 A.D.2d 812, 417 N.Y.S.2d 482 (1979), and may not entertain any presumption that the best interests of the child "will be promoted by any particular disposition." FCA § 631. 69 As petitioners did in this case, parents may appeal any unfavorable decision to the Appellate Division of the New York Supreme Court. Thereafter, review may be sought in the New York Court of Appeals and, ultimately, in this Court if a federal question is properly presented. 70 As this description of New York's termination procedures demonstrates, the State seeks not only to protect the interests of parents in rearing their own children, but also to assist and encourage parents who have lost custody of their children to reassume their rightful role. Fully understood, the New York system is a comprehensive program to aid parents such as petitioners. Only as a last resort, when "diligent efforts" to reunite the family have failed, does New York authorize the termination of parental rights. The procedures for termination of those relationships which cannot be aided and which threaten permanent injury to the child, administered by a judge who has supervised the case from the first temporary removal through the final termination, cannot be viewed as fundamentally unfair. The facts of this case demonstrate the fairness of the system. 71 The three children to which this case relates were removed from petitioners' custody in 1973 and 1974, before petitioners' other two children were born. The removals were made pursuant to the procedures detailed above and in response to what can only be described as shockingly abusive treatment.10 At the temporary removal hearing held before the Family Court on September 30, 1974, petitioners were represented by counsel, and allowed the Ulster County Department of Social Services (Department) to take custody of the three children. 72 Temporary removal of the children was continued at an evidentiary hearing held before the Family Court in December 1975, after which the court issued a written opinion concluding that petitioners were unable to resume their parental responsibilities due to personality disorders. Unsatisfied with the progress petitioners were making, the court also directed the Department to reduce to writing the plan which it had designed to solve the problems at petitioners' home and reunite the family. 73 A plan for providing petitioners with extensive counseling and training services was submitted to the court and approved in February 1976. Under the plan, petitioners received training by a mother's aide, a nutritional aide, and a public health nurse, and counseling at a family planning clinic. In addition, the plan provided psychiatric treatment and vocational training for the father, and counseling at a family service center for the mother. Brief for Respondent Kramer 1-7. Between early 1976 and the final termination decision in April 1979, the State spent more than $15,000 in these efforts to rehabilitate petitioners as parents. App. 34. 74 Petitioners' response to the State's effort was marginal at best. They wholly disregarded some of the available services and participated only sporadically in the others. As a result, and out of growing concern over the length of the children's stay in foster care, the Department petitioned in September 1976 for permanent termination of petitioners' parental rights so that the children could be adopted by other families. Although the Family Court recognized that petitioners' reaction to the State's efforts was generally "non-responsive, even hostile," the fact that they were "at least superficially cooperative" led it to conclude that there was yet hope of further improvement and an eventual reuniting of the family. Exhibit to Brief for Respondent Kramer 618. Accordingly, the petition for permanent termination was dismissed. 75 Whatever progress petitioners were making prior to the 1976 termination hearing, they made little or no progress thereafter. In October 1978, the Department again filed a termination petition alleging that petitioners had completely failed to plan for the children's future despite the considerable efforts rendered in their behalf. This time, the Family Court agreed. The court found that petitioners had "failed in any meaningful way to take advantage of the many social and rehabilitative services that have not only been made available to them but have been diligently urged upon them." App. 35. In addition, the court found that the "infrequent" visits "between the parents and their children were at best superficial and devoid of any real emotional content." Id., at 21. The court thus found "nothing in the situation which holds out any hope that [petitioners] may ever become financially self sufficient or emotionally mature enough to be independent of the services of social agencies. More than a reasonable amount of time has passed and still, in the words of the case workers, there has been no discernible forward movement. At some point in time, it must be said, 'enough is enough.' " Id., at 36. 76 In accordance with the statutory requirements set forth above, the court found that petitioners' failure to plan for the future of their children, who were then seven, five, and four years old and had been out of petitioners' custody for at least four years, rose to the level of permanent neglect. At a subsequent dispositional hearing, the court terminated petitioners' parental rights, thereby freeing the three children for adoption. 77 As this account demonstrates, the State's extraordinary 4-year effort to reunite petitioners' family was not just unsuccessful, it was altogether rebuffed by parents unwilling to improve their circumstances sufficiently to permit a return of their children. At every step of this protracted process petitioners were accorded those procedures and protections which traditionally have been required by due process of law. Moreover, from the beginning to the end of this sad story all judicial determinations were made by one Family Court Judge. After four and one-half years of involvement with petitioners, more than seven complete hearings, and additional periodic supervision of the State's rehabilitative efforts, the judge no doubt was intimately familiar with this case and the prospects for petitioners' rehabilitation. 78 It is inconceivable to me that these procedures were "fundamentally unfair" to petitioners. Only by its obsessive focus on the standard of proof and its almost complete disregard of the facts of this case does the majority find otherwise.11 As the discussion above indicates, however, such a focus does not comport with the flexible standard of fundamental fairness embodied in the Due Process Clause of the Fourteenth Amendment. B 79 In addition to the basic fairness of the process afforded petitioners, the standard of proof chosen by New York clearly reflects a constitutionally permissible balance of the interests at stake in this case. The standard of proof "represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication." In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 1076, 25 L.Ed.2d 368 (1970) (Harlan, J. concurring); Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 1807, 60 L.Ed.2d 323 (1979). In this respect, the standard of proof is a crucial component of legal process, the primary function of which is "to minimize the risk of erroneous decisions."12 Greenholtz v. Nebraska Penal Inmates, 442 U.S., at 13, 99 S.Ct., at 2106. See also Addington v. Texas, supra, at 425, 99 S.Ct., at 1808-1809; Mathews v. Eldridge, 424 U.S., at 344, 96 S.Ct., at 907. 80 In determining the propriety of a particular standard of proof in a given case, however, it is not enough simply to say that we are trying to minimize the risk of error. Because errors in factfinding affect more than one interest, we try to minimize error as to those interests which we consider to be most important. As Justice Harlan explained in his well-known concurrence to In re Winship: 81 "In a lawsuit between two parties, a factual error can make a difference in one of two ways. First, it can result in a judgment in favor of the plaintiff when the true facts warrant a judgment for the defendant. The analogue in a criminal case would be the conviction of an innocent man. On the other hand, an erroneous factual determination can result in a judgment for the defendant when the true facts justify a judgment in plaintiff's favor. The criminal analogue would be the acquittal of a guilty man. 82 The standard of proof influences the relative frequency of these two types of erroneous outcomes. If, for example, the standard of proof for a criminal trial were a preponderance of the evidence rather than proof beyond a reasonable doubt, there would be a smaller risk of factual errors that result in freeing guilty persons, but a far greater risk of factual errors that result in convicting the innocent. Because the standard of proof affects the comparative frequency of these two types of erroneous outcomes, the choice of the standard to be applied in a particular kind of litigation should, in a rational world, reflect an assessment of the comparative social disutility of each." 397 U.S., at 370-371, 90 S.Ct., at 1076. 83 When the standard of proof is understood as reflecting such an assessment, an examination of the interests at stake in a particular case becomes essential to determining the propriety of the specified standard of proof. Because proof by a preponderance of the evidence requires that "[t]he litigants . . . share the risk of error in a roughly equal fashion," Addington v. Texas, supra, at 423, 99 S.Ct., at 1808, it rationally should be applied only when the interests at stake are of roughly equal societal importance. The interests at stake in this case demonstrate that New York has selected a constitutionally permissible standard of proof. 84 On one side is the interest of parents in a continuation of the family unit and the raising of their own children. The importance of this interest cannot easily be overstated. Few consequences of judicial action are so grave as the severance of natural family ties. Even the convict committed to prison and thereby deprived of his physical liberty often retains the love and support of family members. "This Court's decisions have by now made plain beyond the need for multiple citation that a parent's desire for and right to 'the companionship, care, custody, and management of his or her children' is an important interest that 'undeniably warrants deference and, absent a powerful countervailing interest, protection.' Stanley v. Illinois, 405 U.S. 645, 651 [92 S.Ct. 1208, 1212, 31 L.Ed.2d 551]." Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 2161, 68 L.Ed.2d 640 (1981). In creating the scheme at issue in this case, the New York Legislature was expressly aware of this right of parents "to bring up their own children." SSL § 384-b.1.(a)(ii). 85 On the other side of the termination proceeding are the often countervailing interests of the child.13 A stable, loving homelife is essential to a child's physical, emotional, and spiritual well-being. It requires no citation of authority to assert that children who are abused in their youth generally face extraordinary problems developing into responsible, productive citizens. The same can be said of children who, though not physically or emotionally abused, are passed from one foster home to another with no constancy of love, trust, or discipline. If the Family Court makes an incorrect factual determination resulting in a failure to terminate a parent-child relationship which rightfully should be ended, the child involved must return either to an abusive home14 or to the often unstable world of foster care.15 The reality of these risks is magnified by the fact that the only families faced with termination actions are those which have voluntarily surrendered custody of their child to the State, or, as in this case, those from which the child has been removed by judicial action because of threatened irreparable injury through abuse or neglect. Permanent neglect findings also occur only in families where the child has been in foster care for at least one year. 86 In addition to the child's interest in a normal homelife, "the State has an urgent interest in the welfare of the child." Lassiter v. Department of Social Services, 452 U.S., at 27, 101 S.Ct., at 2160.16 Few could doubt that the most valuable resource of a self-governing society is its population of children who will one day become adults and themselves assume the responsibility of self-governance. "A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies." Prince v. Massachusetts, 321 U.S. 158, 168, 64 S.Ct. 438, 443, 88 L.Ed. 645 (1944). Thus, "the whole community" has an interest "that children be both safeguarded from abuses and given opportunities for growth into free and independent well-developed . . . citizens." Id., at 165, 64 S.Ct., at 442. See also Ginsberg v. New York, 390 U.S. 629, 640-641, 88 S.Ct. 1274, 1281-82, 20 L.Ed.2d 195 (1968). 87 When, in the context of a permanent neglect termination proceeding, the interests of the child and the State in a stable, nurturing homelife are balanced against the interests of the parents in the rearing of their child, it cannot be said that either set of interests is so clearly paramount as to require that the risk of error be allocated to one side or the other. Accordingly, a State constitutionally may conclude that the risk of error should be borne in roughly equal fashion by use of the preponderance-of-the-evidence standard of proof. See Addington v. Texas, 441 U.S., at 423, 99 S.Ct., at 1807-1808. This is precisely the balance which has been struck by the New York Legislature: "It is the intent of the legislature in enacting this section to provide procedures not only assuring that the rights of the natural parent are protected, but also, where positive, nurturing parent-child relationships no longer exist, furthering the best interests, needs, and rights of the child by terminating the parental rights and freeing the child for adoption." SSL § 384-b.1.(b). III 88 For the reasons heretofore stated, I believe that the Court today errs in concluding that the New York standard of proof in parental-rights termination proceedings violates due process of law. The decision disregards New York's earnest efforts to aid parents in regaining the custody of their children and a host of procedural protections placed around parental rights and interests. The Court finds a constitutional violation only by a tunnel-vision application of due process principles that altogether loses sight of the unmistakable fairness of the New York procedure. 89 Even more worrisome, today's decision cavalierly rejects the considered judgment of the New York Legislature in an area traditionally entrusted to state care. The Court thereby begins, I fear, a trend of federal intervention in state family law matters which surely will stifle creative responses to vexing problems. Accordingly, I dissent. 1 At oral argument, counsel for petitioners asserted that, in New York, natural parents have no means of restoring terminated parental rights. Tr. of Oral Arg. 9. Counsel for respondents, citing Fam.Ct.Act § 1061, answered that parents may petition the Family Court to vacate or set aside an earlier order on narrow grounds, such as newly discovered evidence or fraud. Tr. of Oral Arg. 26. Counsel for respondents conceded, however, that this statutory provision has never been invoked to set aside a permanent neglect finding. Id., at 27. 2 Most notably, natural parents have a statutory right to the assistance of counsel and of court-appointed counsel if they are indigent. Fam.Ct.Act § 262(a)(iii). 3 Fifteen States, by statute, have required "clear and convincing evidence" or its equivalent. See Alaska Stat.Ann. § 47.10.080(c)(3) (1980); Cal.Civ.Code Ann. § 232(a)(7) (West Supp.1982); Ga.Code §§ 24A-2201(c), 24A-3201 (1979); Iowa Code § 600A.8 (1981) ("clear and convincing proof"); Me.Rev.Stat.Ann., Tit. 22, § 4055.1.B.(2) (Supp.1981-1982); Mich.Comp.Laws § 722.25 (Supp.1981-1982); Mo.Rev.Stat. § 211.447.2(2) (Supp.1981) ("clear, cogent and convincing evidence"), N.M.Stat.Ann. § 40-7-4.J. (Supp.1981); N.C.Gen.Stat. § 7A-289.30(e) (1981) ("clear, cogent, and convincing evidence"); Ohio Rev.Code Ann. §§ 2151.35, 2151.414(B) (Page Supp.1982); R.I.Gen.Laws § 15-7-7(d) (Supp.1980); Tenn.Code Ann. § 37-246(d) (Supp.1981); Va.Code § 16.1-283.B (Supp.1981); W.Va.Code § 49-6-2(c) (1980) ("clear and convincing proof"); Wis.Stat. § 48.31(1) (Supp.1981-1982). Fifteen States, the District of Columbia, and the Virgin Islands, by court decision, have required "clear and convincing evidence" or its equivalent. See Dale County Dept. of Pensions & Security v. Robles, 368 So.2d 39, 42 (Ala.Civ.App.1979); Harper v. Caskin, 265 Ark. 558, 560-561, 580 S.W.2d 176, 178 (1979); In re J. S. R., 374 A.2d 860, 864 (D.C.1977); Torres v. Van Eepoel, 98 So.2d 735, 737 (Fla.1957); In re Kerns, 225 Kan. 746, 753, 594 P.2d 187, 193 (1979); In re Rosenbloom, 266 N.W.2d 888, 889 (Minn.1978) ("clear and convincing proof"); In re J. L. B., 182 Mont. 100, 116-117, 594 P.2d 1127, 1136 (1979); In re Souza, 204 Neb. 503, 510, 283 N.W.2d 48, 52 (1979); J. v. M., 157 N.J.Super. 478, 489, 385 A.2d 240, 246 (App.Div.1978); In re J.A., 283 N.W.2d 83, 92 (N.D.1979); In re Darren Todd H., 615 P.2d 287, 289 (Okl.1980); In re William L., 477 Pa. 322, 332, 383 A.2d 1228, 1233, cert. denied sub nom. Lehman v. Lycoming County Children's Services, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978); In re G. M., 596 S.W.2d 846, 847 (Tex.1980); In re Pitts, 535 P.2d 1244, 1248 (Utah 1975); In re Maria, 15 V.I. 368, 384 (1978); In re Sego, 82 Wash.2d 736, 739, 513 P.2d 831, 833 (1973) ("clear, cogent, and convincing evidence"); In re X., 607 P.2d 911, 919 (Wyo.1980) ("clear and unequivocal"). South Dakota's Supreme Court has required a "clear preponderance" of the evidence in a dependency proceeding. See In re B.E., 287 N.W.2d 91, 96 (1979). Two States, New Hampshire and Louisiana, have barred parental rights terminations unless the key allegations have been proved beyond a reasonable doubt. See State v. Robert H., 118 N.H. 713, 716, 393 A.2d 1387, 1389 (1978); La.Rev.Stat.Ann. § 13:1603.A (West Supp.1982). Two States, Illinois and New York, have required clear and convincing evidence, but only in certain types of parental rights termination proceedings. See Ill.Rev.Stat. ch. 37, &Par; 705-9(2), (3) (1979), amended by Act of Sept. 11, 1981, 1982 Ill.Laws, P.A. 82-437 (generally requiring a preponderance of the evidence, but requiring clear and convincing evidence to terminate the rights of minor parents and mentally ill or mentally deficient parents); N.Y.Soc.Serv.Law §§ 384-b.3(g), 384-b.4(c), and 384-b.4(e) (requiring "clear and convincing proof" before parental rights may be terminated for reasons of mental illness and mental retardation or severe and repeated child abuse). So far as we are aware, only two federal courts have addressed the issue. Each has held that allegations supporting parental rights termination must be proved by clear and convincing evidence. Sims v. State Dept. of Public Welfare, 438 F.Supp. 1179, 1194 (S.D.Tex.1977), rev'd on other grounds sub nom. Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979); Alsager v. District Court of Polk County, 406 F.Supp. 10, 25 (S.D.Iowa 1975), aff'd on other grounds, 545 F.2d 1137 (CA8 1976). 4 Respondent had made an earlier and unsuccessful termination effort in September 1976. After a factfinding hearing, the Family Court Judge dismissed respondent's petition for failure to prove an essential element of Fam.Ct.Act § 614.1.(d). See In re Santosky, 89 Misc.2d 730, 393 N.Y.S.2d 486 (1977). The New York Supreme Court, Appellate Division, affirmed, finding that "the record as a whole" revealed that petitioners had "substantially planned for the future of the children." In re John W., 63 App.Div.2d 750, 751, 404 N.Y.S.2d 717, 719 (1978). 5 Since respondent Kramer took custody of Tina, John III, and Jed, the Santoskys have had two other children, James and Jeremy. The State has taken no action to remove these younger children. At oral argument, counsel for respondents replied affirmatively when asked whether he was asserting that petitioners were "unfit to handle the three older ones but not unfit to handle the two younger ones." Tr. of Oral Arg. 24. 6 Petitioners initially had sought review in the New York Court of Appeals. That court sua sponte transferred the appeal to the Appellate Division, Third Department, stating that a direct appeal did not lie because "questions other than the constitutional validity of a statutory provision are involved." App. 50. 7 We therefore reject respondent Kramer's claim that a parental rights termination proceeding does not interfere with a fundamental liberty interest. See Brief for Respondent Kramer 11-18; Tr. of Oral Arg. 38. The fact that important liberty interests of the child and its foster parents may also be affected by a permanent neglect proceeding does not justify denying the natural parents constitutionally adequate procedures. Nor can the State refuse to provide natural parents adequate procedural safeguards on the ground that the family unit already has broken down; that is the very issue the permanent neglect proceeding is meant to decide. 8 The dissent charges, post, at 772, n. 2, that "this Court simply has no role in establishing the standards of proof that States must follow in the various judicial proceedings they afford to their citizens." As the dissent properly concedes, however, the Court must examine a State's chosen standard to determine whether it satisfies "the constitutional minimum of 'fundamental fairness.' " Ibid. See, e.g., Addington v. Texas, 441 U.S. 418, 427, 433, 99 S.Ct. 1804, 1810, 1813, 60 L.Ed.2d 323 (1979) (unanimous decision of participating Justices) (Fourteenth Amendment requires at least clear and convincing evidence in a civil proceeding brought under state law to commit an individual involuntarily for an indefinite period to a state mental hospital); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970) (Due Process Clause of the Fourteenth Amendment protects the accused in state proceeding against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged). 9 For this reason, we reject the suggestions of respondents and the dissent that the constitutionality of New York's statutory procedures must be evaluated as a "package." See Tr. of Oral Arg. 25, 36, 38. Indeed, we would rewrite our precedents were we to excuse a constitutionally defective standard of proof based on an amorphous assessment of the "cumulative effect" of state procedures. In the criminal context, for example, the Court has never assumed that "strict substantive standards or special procedures compensate for a lower burden of proof. . . ." Post, at 773. See In re Winship, 397 U.S., at 368, 90 S.Ct., at 1074. Nor has the Court treated appellate review as a curative for an inadequate burden of proof. See Woodby v. INS, 385 U.S. 276, 282, 87 S.Ct. 483, 486, 17 L.Ed.2d 362 (1966) ("judicial review is generally limited to ascertaining whether the evidence relied upon by the trier of fact was of sufficient quality and substantiality to support the rationality of the judgment"). As the dissent points out, "the standard of proof is a crucial component of legal process, the primary function of which is 'to minimize the risk of erroneous decisions.' " Post, at 785, quoting Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 13, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979). Notice, summons, right to counsel, rules of evidence, and evidentiary hearings are all procedures to place information before the factfinder. But only the standard of proof "instruct[s] the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions" he draws from that information. In re Winship, 397 U.S., at 370, 90 S.Ct., at 1076 (Harlan, J., concurring). The statutory provision of right to counsel and multiple hearings before termination cannot suffice to protect a natural parent's fundamental liberty interests if the State is willing to tolerate undue uncertainty in the determination of the dispositive facts. 10 The Family Court Judge in the present case expressly refused to terminate petitioners' parental rights on a "non-statutory, no-fault basis." App. 22-29. Nor is it clear that the State constitutionally could terminate a parent's rights without showing parental unfitness. See Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (1978) ("We have little doubt that the Due Process Clause would be offended '[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest,' " quoting Smith v. Organization of Foster Families, 431 U.S. 816, 862-863, 97 S.Ct. 2094, 2119, 53 L.Ed.2d 14 (1977) (Stewart, J., concurring in judgment)). 11 For a child, the consequences of termination of his natural parents' rights may well be far-reaching. In Colorado, for example, it has been noted: "The child loses the right of support and maintenance, for which he may thereafter be dependent upon society; the right to inherit; and all other rights inherent in the legal parent-child relationship, not just for [a limited] period . . ., but forever." In re K.S., 33 Colo.App. 72, 76, 515 P.2d 130, 133 (1973). Some losses cannot be measured. In this case, for example, Jed Santosky was removed from his natural parents' custody when he was only three days old; the judge's finding of permanent neglect effectively foreclosed the possibility that Jed would ever know his natural parents. 12 For example, a New York court appraising an agency's "diligent efforts" to provide the parents with social services can excuse efforts not made on the grounds that they would have been "detrimental to the best interests of the child." Fam.Ct.Act § 614.1.(c). In determining whether the parent "substantially and continuously or repeatedly" failed to "maintain contact with . . . the child," § 614.1.(d), the judge can discount actual visits or communications on the grounds that they were insubstantial or "overtly demonstrat[ed] a lack of affectionate and concerned parenthood." Soc.Serv.Law § 384-b.7.(b). When determining whether the parent planned for the child's future, the judge can reject as unrealistic plans based on overly optimistic estimates of physical or financial ability. § 384-b.7.(c). See also dissenting opinion, post at 779-780, nn. 8 and 9. 13 In this case, for example, the parents claim that the State sought court orders denying them the right to visit their children, which would have prevented them from maintaining the contact required by Fam.Ct.Act. § 614.1.(d). See Brief for Petitioners 9. The parents further claim that the State cited their rejection of social services they found offensive or superfluous as proof of the agency's "diligent efforts" and their own "failure to plan" for the children's future. Id., at 10-11. We need not accept these statements as true to recognize that the State's unusual ability to structure the evidence increases the risk of an erroneous factfinding. Of course, the disparity between the litigants' resources will be vastly greater in States where there is no statutory right to court-appointed counsel. See Lassiter v. Department of Social Services, 452 U.S. 18, 34, 101 S.Ct. 2153, 2163, 68 L.Ed.2d 640 (1981) (only 33 States and the District of Columbia provide that right by statute). 14 The dissent makes a similar claim. See post, at 786-791. 15 This is a hazardous assumption at best. Even when a child's natural home is imperfect, permanent removal from that home will not necessarily improve his welfare. See, e.g., Wald, State Intervention on Behalf of "Neglected" Children: A Search for Realistic Standards, 27 Stan.L.Rev. 985, 993 (1975) ("In fact, under current practice, coercive intervention frequently results in placing a child in a more detrimental situation than he would be in without intervention"). Nor does termination of parental rights necessarily ensure adoption. See Brief for Community Action for Legal Services, Inc., et al. as Amici Curiae 22-23. Even when a child eventually finds an adoptive family, he may spend years moving between state institutions and "temporary" foster placements after his ties to his natural parents have been severed. See Smith v. Organization of Foster Families, 431 U.S., at 833-838, 97 S.Ct., at 2103-06 (describing the "limbo" of the New York foster care system). 16 When the termination proceeding occurs, the child is not living at his natural home. A child cannot be adjudicated "permanently neglected" until, "for a period of more than one year," he has been in "the care of an authorized agency." Soc.Serv.Law § 384-b.7.(a); Fam.Ct.Act § 614.1.(d). See also dissenting opinion, post, at 789-790. Under New York law, a judge has ample discretion to ensure that, once removed from his natural parents on grounds of neglect, a child will not return to a hostile environment. In this case, when the State's initial termination effort failed for lack of proof, see n. 4, supra, the court simply issued orders under Fam.Ct. Act § 1055(b) extending the period of the child's foster home placement. See App. 19-20. See also Fam.Ct. Act § 632(b) (when State's permanent neglect petition is dismissed for insufficient evidence, judge retains jurisdiction to reconsider underlying orders of placement); § 633 (judge may suspend judgment at dispositional hearing for an additional year). 17 Any parens patriae interest in terminating the natural parents' rights arises only at the dispositional phase, after the parents have been found unfit. 18 The dissent's claim that today's decision "will inevitably lead to the federalization of family law," post, at 773, is, of course, vastly overstated. As the dissent properly notes, the Court's duty to "refrai[n] from interfering with state answers to domestic relations questions" has never required "that the Court should blink at clear constitutional violations in state statutes." Post, at 771. 19 Unlike the dissent, we carefully refrain from accepting as the "facts of this case" findings that are not part of the record and that have been found only to be more likely true than not. 1 New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921). 2 The majority asserts that "the degree of proof required in a particular type of proceeding 'is the kind of question which has traditionally been left to the judiciary to resolve.' Woodby v. INS, 385 U.S. 276, 284, 87 S.Ct. 483, 487, 17 L.Ed.2d 362 (1966)." Ante, at 755-756. To the extent that the majority seeks, by this statement, to place upon the federal judiciary the primary responsibility for deciding the appropriate standard of proof in state matters, it arrogates to itself a responsibility wholly at odds with the allocation of authority in our federalist system and wholly unsupported by the prior decisions of this Court. In Woodby v. INS, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966), the Court determined the proper standard of proof to be applied under a federal statute, and did so only after concluding that "Congress ha[d] not addressed itself to the question of what degree of proof [was] required in deportation proceedings." Id., at 284, 87 S.Ct., at 487. Beyond an examination for the constitutional minimum of "fundamental fairness"—which clearly is satisfied by the New York procedures at issue in this case—this Court simply has no role in establishing the standards of proof that States must follow in the various judicial proceedings they afford to their citizens. 3 Although, as the majority states, we have held that the minimum requirements of procedural due process are a question of federal law, such a holding does not mean that the procedural protections afforded by a State will be inadequate under the Fourteenth Amendment. It means simply that the adequacy of the state-provided process is to be judged by constitutional standards standards which the majority itself equates to "fundamental fairness." Ante, at 754. I differ, therefore, not with the majority's statement that the requirements of due process present a federal question, but with its apparent assumption that the presence of "fundamental fairness" can be ascertained by an examination which completely disregards the plethora of protective procedures accorded parents by New York law. 4 The majority refuses to consider New York's procedure as a whole, stating that "[t]he statutory provision of right to counsel and multiple hearings before termination cannot suffice to protect a natural parent's fundamental liberty interests if the State is willing to tolerate undue uncertainty in the determination of the dispositive facts." Ante, at 758, n. 9. Implicit in this statement is the conclusion that the risk of error may be reduced to constitutionally tolerable levels only by raising the standard of proof—that other procedures can never eliminate "undue uncertainty" so long as the standard of proof remains too low. Aside from begging the question of whether the risks of error tolerated by the State in this case are "undue," see infra, at 785-791, this conclusion denies the flexibility that we have long recognized in the principle of due process; understates the error-reducing power of procedural protections such as the right to counsel, evidentiary hearings, rules of evidence, and appellate review; and establishes the standard of proof as the sine qua non of procedural due process. 5 An abused child is one who has been subjected to intentional physical injury "which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ." FCA § 1012(e)(i). Sexual offenses against a child are also covered by this category. A neglected child is one "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent . . . to exercise a minimum degree of care in supplying the child with adequate food, clothing, shelter or education." FCA § 1012(f)(i)(A). 6 The relatively short time between notice and commencement of hearing provided by § 1048 undoubtedly reflects the State's desire to protect the child. These proceedings are designed to permit prompt action by the court when the child is threatened with imminent and serious physical, mental, or emotional harm. 7 Permanent custody also may be awarded by the Family Court if both parents are deceased, the parents abandoned the child at least six months prior to the termination proceedings, or the parents are unable to provide proper and adequate care by reason of mental illness or mental retardation. SSL § 384-b.4.(c). 8 As to maintaining contact with the child, New York law provides that "evidence of insubstantial or infrequent contacts by a parent with his or her child shall not, of itself, be sufficient as a matter of law to preclude a determination that such child is a permanently neglected child. A visit or communication by a parent with the child which is of such a character as to overtly demonstrate a lack of affectionate and concerned parenthood shall not be deemed a substantial contact." SSL § 384-b.7.(b). Failure to plan for the future of the child means failure "to take such steps as may be necessary to provide an adequate, stable home and parental care for the child within a period of time which is reasonable under the financial circumstances available to the parent. The plan must be realistic and feasible, and good faith effort shall not, of itself, be determinative. In determining whether a parent has planned for the future of the child, the court may consider the failure of the parent to utilize medical, psychiatric, psychological and other social and rehabilitative services and material resources made available to such parent." SSL § 384-b.7.(c). 9 "Diligent efforts" are defined under New York law to "mean reasonable attempts by an authorized agency to assist, develop and encourage a meaningful relationship between the parent and child, including but not limited to: "(1) consultation and cooperation with the parents in developing a plan for appropriate services to the child and his family; "(2) making suitable arrangements for the parents to visit the child; "(3) provision of services and other assistance to the parents so that problems preventing the discharge of the child from care may be resolved or ameliorated; and "(4) informing the parents at appropriate intervals of the child's progress, development and health." SSL § 384-b.7.(f). 10 Tina Apel, the oldest of petitioners' five children, was removed from their custody by court order in November 1973 when she was two years old. Removal proceedings were commenced in response to complaints by neighbors and reports from a local hospital that Tina had suffered injuries in petitioners' home including a fractured left femur, treated with a home-made splint; bruises on the upper arms, forehead, flank, and spine; and abrasions of the upper leg. The following summer John Santosky III, petitioners' second oldest child, was also removed from petitioner's custody. John, who was less than one year old at the time, was admitted to the hospital suffering malnutrition, bruises on the eye and forehead, cuts on the foot, blisters on the hand, and multiple pin pricks on the back. Exhibit to Brief for Respondent Kramer 1-5. Jed Santosky, the third oldest of petitioners' children, was removed from his parents' custody when only three days old as a result of the abusive treatment of the two older children. 11 The majority finds, without any reference to the facts of this case, that "numerous factors [in New York termination proceedings] combine to magnify the risk of erroneous factfinding." Ante, at 762. Among the factors identified by the majority are the "unusual discretion" of the Family Court Judge "to underweigh probative facts that might favor the parent"; the often uneducated, minority status of the parents and their consequent "vulnerab[ility] to judgments based on cultural or class bias"; the "State's ability to assemble its case," which "dwarfs the parents' ability to mount a defense" by including an unlimited budget, expert attorneys, and "full access to all public records concerning the family"; and the fact that "natural parents have no 'double jeopardy' defense against repeated state" efforts, "with more or better evidence," to terminate parental rights "even when the parents have attained the level of fitness required by the State." Ante, at 762, 763, 764. In short, the majority characterizes the State as a wealthy and powerful bully bent on taking children away from defenseless parents. See ante, at 761-764. Such characterization finds no support in the record. The intent of New York has been stated with eminent clarity: "the [S]tate's first obligation is to help the family with services to prevent its break-up or to reunite it if the child has already left home." SSL § 384-b.1.(a)(iii) (emphasis added). There is simply no basis in fact for believing, as the majority does, that the State does not mean what it says; indeed, the facts of this case demonstrate that New York has gone the extra mile in seeking to effectuate its declared purpose. See supra, at 781-785. More importantly, there should be no room in the jurisprudence of this Court for decisions based on unsupported, inaccurate assumptions. A brief examination of the "factors" relied upon by the majority demonstrates its error. The "unusual" discretion of the Family Court Judge to consider the " 'affectio[n] and concer[n]' " displayed by parents during visits with their children, ante, at 763, n. 12, is nothing more than discretion to consider reality; there is not one shred of evidence in this case suggesting that the determination of the Family Court was "based on cultural or class bias"; if parents lack the "ability to mount a defense," the State provides them with the full services of an attorney, FCA § 262, and they, like the State, have "full access to all public records concerning the family" (emphasis added); and the absence of "double jeopardy" protection simply recognizes the fact that family problems are often ongoing and may in the future warrant action that currently is unnecessary. In this case the Family Court dismissed the first termination petition because it desired to give petitioners "the benefit of the doubt," Exhibit to Brief for Respondent Kramer 620, and a second opportunity to raise themselves to "an acceptable minimal level of competency as parents." Id., at 624. It was their complete failure to do so that prompted the second, successful termination petition. See supra, at 781-784 and this page. 12 It is worth noting that the significance of the standard of proof in New York parental termination proceedings differs from the significance of the standard in other forms of litigation. In the usual adjudicatory setting, the factfinder has had little or no prior exposure to the facts of the case. His only knowledge of those facts comes from the evidence adduced at trial, and he renders his findings solely upon the basis of that evidence. Thus, normally, the standard of proof is a crucial factor in the final outcome of the case, for it is the scale upon which the factfinder weighs his knowledge and makes his decision. Although the standard serves the same function in New York parental termination proceedings, additional assurances of accuracy are present in its application. As was adduced at oral argument, the practice in New York is to assign one judge to supervise a case from the initial temporary removal of the child to the final termination of parental rights. Therefore, as discussed above, the factfinder is intimately familiar with the case before the termination proceedings ever begin. Indeed, as in this case, he often will have been closely involved in protracted efforts to rehabilitate the parents. Even if a change in judges occurs, the Family Court retains jurisdiction of the case and the newly assigned judge may take judicial notice of all prior proceedings. Given this familiarity with the case, and the necessarily lengthy efforts which must precede a termination action in New York, decisions in termination cases are made by judges steeped in the background of the case and peculiarly able to judge the accuracy of evidence placed before them. This does not mean that the standard of proof in these cases can escape due process scrutiny, only that additional assurances of accuracy attend the application of the standard in New York termination proceedings. 13 The majority dismisses the child's interest in the accuracy of determinations made at the factfinding hearing because "[t]he factfinding does not purport . . . to balance the child's interest in a normal family home against the parents' interest in raising the child," but instead "pits the State directly against the parents." Ante, at 759. Only "[a]fter the State has established parental unfitness," the majority reasons, may the court "assume . . . that the interests of the child and the natural parents do diverge." Ante, at 760. This reasoning misses the mark. The child has an interest in the outcome of the factfinding hearing independent of that of the parent. To be sure, "the child and his parents share a vital interest in preventing erroneous termination of their natural relationship." Ibid. (emphasis added). But the child's interest in a continuation of the family unit exists only to the extent that such a continuation would not be harmful to him. An error in the factfinding hearing that results in a failure to terminate a parent-child relationship which rightfully should be terminated may well detrimentally affect the child. See nn. 14, 15, infra. The preponderance-of-the-evidence standard, which allocates the risk of error more or less evenly, is employed when the social disutility of error in either direction is roughly equal—that is, when an incorrect finding of fault would produce consequences as undesirable as the consequences that would be produced by an incorrect finding of no fault. Only when the disutility of error in one direction discernibly outweighs the disutility of error in the other direction do we choose, by means of the standard of proof, to reduce the likelihood of the more onerous outcome. See In re Winship, 397 U.S. 358, 370-372, 90 S.Ct. 1068, 1075-1077, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). New York's adoption of the preponderance-of-the-evidence standard reflects its conclusion that the undesirable consequence of an erroneous finding of parental unfitness—the unwarranted termination of the family relationship—is roughly equal to the undesirable consequence of an erroneous finding of parental fitness—the risk of permanent injury to the child either by return of the child to an abusive home or by the child's continued lack of a permanent home. See nn. 14, 15, infra. Such a conclusion is well within the province of state legislatures. It cannot be said that the New York procedures are unconstitutional simply because a majority of the Members of this Court disagree with the New York Legislature's weighing of the interests of the parents and the child in an error-free factfinding hearing. 14 The record in this case illustrates the problems that may arise when a child is returned to an abusive home. Eighteen months after Tina, petitioners' oldest child, was first removed from petitioners' home, she was returned to the home on a trial basis. Katherine Weiss, a supervisor in the Child Protective Unit of the Ulster County Child Welfare Department, later testified in Family Court that "[t]he attempt to return Tina to her home just totally blew up." Exhibit to Brief for Respondent Kramer 135. When asked to explain what happened, Mrs. Weiss testified that "there were instances on the record in this court of Mr. Santosky's abuse of his wife, alleged abuse of the children and proven neglect of the children." Ibid. Tina again was removed from the home, this time along with John and Jed. 15 The New York Legislature recognized the potential harm to children of extended, non-permanent foster care. It found "that many children who have been placed in foster care experience unnecessarily protracted stays in such care without being adopted or returned to their parents or other custodians. Such unnecessary stays may deprive these children of positive, nurturing family relationships and have deleterious effects on their development into responsible, productive citizens." SSL § 384-b.1.(b). Subsequent studies have proved this finding correct. One commentator recently wrote of "the lamentable conditions of many foster care placements" under the New York system even today. He noted: "Over fifty percent of the children in foster care have been in this 'temporary' status for more than two years; over thirty percent for more than five years. During this time, many children are placed in a sequence of ill-suited foster homes, denying them the consistent support and nurturing that they so desperately need." Besharov, State Intervention To Protect Children: New York's Definition of "Child Abuse" and "Child Neglect," 26 N.Y.L. S. L.Rev. 723, 770-771 (1981) (footnotes omitted). In this case, petitioners' three children have been in foster care for more than four years, one child since he was only three days old. Failure to terminate petitioners' parental rights will only mean a continuation of this unsatisfactory situation. 16 The majority's conclusion that a state interest in the child's well-being arises only after a determination of parental unfitness suffers from the same error as its assertion that the child has no interest, separate from that of its parents, in the accuracy of the factfinding hearing. See n. 13, supra.

12

455 U.S. 691 102 S.Ct. 1357 71 L.Ed.2d 558 UNDERWRITERS NATIONAL ASSURANCE COMPANY, Petitionerv.NORTH CAROLINA LIFE AND ACCIDENT AND HEALTH INSURANCE GUARANTY ASSOCIATION, et al. No. 80-1496. Argued Nov. 9, 1981. Decided March 24, 1982. Syllabus Petitioner, an Indiana stock insurance corporation, as required by law to do business in North Carolina, was a member of respondent North Carolina Life and Accident and Health Insurance Guaranty Association (North Carolina Association), which, under a North Carolina statute, is ultimately responsible for fulfilling the policy obligations of members that become insolvent or otherwise fail to meet their policy obligations. Because of its questionable financial condition, petitioner was required by respondent North Carolina Commissioner of Insurance to post a $100,000 deposit for the benefit of its North Carolina policyholders. Subsequently, rehabilitation proceedings were brought against petitioner in an Indiana state court (Rehabilitation Court), in which the North Carolina Association intervened and in which the court certified a class consisting of all past and present policyholders. The Rehabilitation Court ultimately ruled in 1978 that all pre-rehabilitation claims to the deposit were compromised, settled, and dismissed by the court's 1976 order which adopted a rehabilitation plan and which ruled that the court had jurisdiction over the subject matter and over the parties. In the meantime, when a dispute arose between petitioner and the North Carolina Association as to the rehabilitation plan's effect on use of the North Carolina deposit, the North Carolina Association filed suit in a North Carolina state court, seeking a declaratory judgment that it was entitled to use the deposit to fulfill the pre-rehabilitation contractual obligations to North Carolina policyowners that had been compromised in the rehabilitation proceeding. Holding that the North Carolina statutes governing the North Carolina Association and the $100,000 deposit deprived the Rehabilitation Court of subject-matter jurisdiction to determine rights in the deposit, the North Carolina court refused to honor the Rehabilitation Court's prior ruling as to claims to the deposit. The North Carolina Court of Appeals affirmed. Held : Under the Full Faith and Credit Clause, a judgment of a court in one State is conclusive upon the merits in another State only if the court in the first State had power to pass on the merits—that is, had jurisdiction over the subject matter and the relevant parties. Cf. Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186. In this case, the North Carolina courts violated the Full Faith and Credit Clause by refusing to treat the Rehabilitation Court's prior judgments as res judicata. Pp. 703-716. (a) Regardless of the validity, under North Carolina law, of the North Carolina courts' holding that the Rehabilitation Court did not have subject-matter jurisdiction to determine the rights in the deposit, it is not an appropriate ground for refusing to accord the Indiana judgments full faith and credit. The principles of res judicata apply to questions of jurisdiction, and "a judgment is entitled to full faith and credit—even as to questions of jurisdiction—when the second court's inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment." Durfee v. Duke, supra, at 111, 84 S.Ct. at 245. The record here establishes that the Rehabilitation Court fully and fairly considered whether it had subject-matter jurisdiction to settle the pre-rehabilitation claims of the parties before it to the North Carolina deposit. As an intervening party, the North Carolina Association was obliged to advance its argument that the court did not have authority to settle pre-rehabilitation claims to the deposit when it was given the opportunity to do so. Pp. 705-710. (b) The North Carolina courts' refusal to give the Indiana judgments full faith and credit cannot be supported on the asserted ground that the Rehabilitation Court lacked in personam jurisdiction over North Carolina policyowners because no policyowner actually appeared in the rehabilitation proceedings and because the class representatives could not adequately represent the policyowners in both deposit and nondeposit States. Respondents have not identified any current interest in the North Carolina deposit that a policyowner might have, independent of the interests asserted by the North Carolina Association. North Carolina law requires the Association to provide North Carolina policyowners with pre-rehabilitation coverage even if it cannot use the deposit to finance this obligation. Therefore, these policyowners have no current interest in whether the Association is allowed to liquidate the deposit. Pp. 711-713. (c) Nor can refusal to give full faith and credit to the Rehabilitation Court's judgments be supported on the asserted ground that the court lacked in personam jurisdiction over North Carolina officials. Although the Rehabilitation Court did not attempt to exercise jurisdiction over the North Carolina trustees of the deposit, it did purport to exercise jurisdiction over the trust corpus; its 1978 order specified that the 1976 rehabilitation plan determined that the deposit was an asset of petitioner, subject to the court's jurisdiction. Regardless of whether this conclusion might have been erroneous as a matter of North Carolina law, the jurisdictional issue was fully and fairly litigated and finally determined by the Rehabilitation Court, and the North Carolina courts were required to honor the Rehabilitation Court's determination. A court of competent jurisdiction can settle the claims of two competing parties to specific property even though a third party may claim an interest in the same res. Pp. 713-715. (d) There may be merit, as a matter of insurance law, in respondent's arguments that honoring the Rehabilitation Court's determination that the deposit was an asset of petitioner would negate North Carolina's comprehensive statutory scheme to ensure protection of North Carolina policyowners and that a State has a right to segregate assets of a foreign insurance company to be used for the sole benefit of that State's policyowners. However, the only forums in which respondents may challenge the Rehabilitation Court's assertion of jurisdiction on such grounds are in Indiana, not North Carolina. Pp. 715-716. 48 N.C.App. 508, 269 S.E.2d 688, reversed and remanded. Theodore R. Boehm, Indianapolis, Ind., for petitioner. William S. Patterson, Washington, D. C., for respondents. Justice MARSHALL delivered the opinion of the Court. 1 In this case, the North Carolina Court of Appeals held that an Indiana court was without jurisdiction to adjudicate the rights of various parties in a $100,000 deposit held in trust by certain North Carolina officials. Because it found that the Indiana court did not have jurisdiction, the North Carolina court refused to recognize the Indiana court's prior ruling that all claims to the deposit were compromised, settled, and dismissed by the final order entered by that court during a rehabilitation proceeding. We granted certiorari to decide whether, by refusing to treat the prior Indiana court judgment as res judicata, the North Carolina court has violated the Full Faith and Credit Clause of the Constitution and its implementing federal statute. 451 U.S. 982, 101 S.Ct. 2312, 68 L.Ed.2d 838 (1981). For the reasons stated below, we reverse the decision of the North Carolina Court of Appeals. 2 * Petitioner Underwriters National Assurance Co. (Underwriters) is an Indiana stock insurance corporation specializing in life and disability insurance for certain high-income professional groups. In 1973 Underwriters was licensed to do business in 45 States, including North Carolina, and was administering over 50,000 policies. To qualify to do business in North Carolina, Underwriters was required to join respondent North Carolina Life and Accident and Health Insurance Guaranty Association (North Carolina Association), a state-created association of all foreign and domestic insurance companies operating in North Carolina. See Life and Accident and Health Insurance Guaranty Association Act, N.C.Gen.Stat. § 58-155.65 et seq. (1975) (Guaranty Act). Under the terms of the Guaranty Act, the North Carolina Association is ultimately responsible for fulfilling the policy obligations of any member that becomes insolvent or otherwise fails to honor its obligations to North Carolina policyholders. N.C.Gen.Stat. § 58-155.72(4) (Supp.1981). 3 In June 1973, after determining that Underwriters' financial condition was questionable, the North Carolina Commissioner of Insurance informed Underwriters that it must post a $100,000 deposit "for the sole benefit of North Carolina policyholders," to continue to do business in that State. Shortly thereafter, Underwriters deposited with the State a $100,000 bond registered to the "Treasurer of the State of North Carolina in trust for the Underwriters National Assurance Company and the State of North Carolina as their respective interests may appear under Article 20, Chapter 58-188.5 of the North Carolina General Statutes." See N.C.Gen.Stat. § 58-182 et seq. (1975) (Deposit Act). 4 The North Carolina Commissioner's fears about Underwriters' financial condition proved to be well founded. Approximately one year after Underwriters posted this bond, the Indiana Department of Insurance commenced rehabilitation proceedings against petitioner on the ground that its reserves were inadequate to meet its future policy obligations. By order dated August 5, 1974, the Superior Court for Marion County (Rehabilitation Court)1 appointed the Indiana Commissioner of Insurance as Rehabilitator and directed him to "take possession of the business and assets of Underwriters . . . and conduct the business thereof and appoint such personnel as may be necessary to rehabilitate Underwriters." Notice of this action was sent to all state insurance commissioners, including respondent North Carolina Commissioner. The North Carolina Commissioner immediately informed the North Carolina Association that Underwriters was undergoing rehabilitation in Indiana, and that title to all assets of Underwriters had been transferred to the Indiana Rehabilitator. 5 Shortly after entering the order of rehabilitation, the Rehabilitation Court enjoined the commencement or prosecution of any suit against Underwriters or the Rehabilitator. This injunction stayed several policyholder actions that had been filed against Underwriters, and required that any person who desired to institute or to prosecute any such action join the Indiana rehabilitation proceeding.2 The plaintiffs in the stayed actions were subsequently given permission to intervene in the rehabilitation proceeding. In October 1975, the Rehabilitation Court certified a class consisting of all past and present policyholders, and appointed intervening plaintiffs from the stayed actions as class representatives.3 6 The Rehabilitation Court sent notice of the rehabilitation proceeding to all policyholders, informing them that the class had been certified, and that all members not requesting exclusion would be bound by the judgment of the Rehabilitation Court. The notice concluded by stating that "[t]he entire court file" was available to any class member.4 7 Over the next two and one-half years, the Rehabilitation Court supervised the efforts of the Rehabilitator and other interested parties to return Underwriters to a sound financial footing. After extensive negotiations between Underwriters, the class representatives, and other interested parties, the Rehabilitator submitted a Proposed Plan to the Rehabilitation Court in April 1976. In order to preserve the financial health of the company and to provide continuing coverage for policyholders, the Rehabilitator proposed that the Rehabilitation Court reform the policies to require increased premiums and reduced benefits.5 Of particular interest to this litigation, the Proposed Plan stated that Underwriters "[will have] no liability to any guaranty association which itself has obligations to [Underwriters'] policyowners." Proposed Rehabilitation Plan, I(J), Exhibit Binder 79 (E.B.). Part X(C) of the Proposed Plan further provided: 8 "The guaranty associations in some states may have obligations to [Underwriters'] policyowners as a result of the [Underwriters] rehabilitation proceeding. Moreover, to the extent such guaranty associations do have obligations, there is a possibility that those guaranty associations may seek to recover from [Underwriters] sums paid to [Underwriters'] policyowners. The Rehabilitation Plan should resolve [Underwriters'] contingent liability to any guaranty association by determining that [Underwriters] has no further obligation or liability to any guaranty association." Id., at 89 (emphasis added). 9 By direction of the Rehabilitation Court, the Rehabilitator mailed a copy of this Proposed Plan to all interested parties, including all state guaranty associations and insurance commissioners. The Rehabilitator subsequently sent to the guaranty associations notice of a hearing to consider various rehabilitation plans, including that of the Rehabilitator. This notice explicitly informed the guaranty associations that although eight associations, including the North Carolina Association, "may have obligations to . . . policyowners as a result of the [Underwriters] rehabilitation proceeding," no association had either intervened in the proceeding, or made suggestions for changes in the Plan. The notice directed that if a guaranty association desired to present any information or contentions relevant to the rehabilitation of Underwriters, it must intervene in the proceeding and present its arguments at the June 9, 1976, hearing. Unless the associations either intervened, or stated in writing that they had no obligations to policyowners and that they waived all claims against Underwriters and the Rehabilitator, a summons would issue to bring the associations before the Rehabilitation Court. Id., at 59-61. 10 On June 8, 1976, these eight guaranty associations, including the North Carolina Association, intervened in the Indiana rehabilitation proceeding. In their motion to intervene, the guaranty associations stated that Part X(C) of the Proposed Plan was "unacceptable," and that through negotiations, the associations and the Rehabilitator had agreed on a modification that would "protect the rights of the Guaranty Associations." In relevant part,6 the guaranty associations proposed that Part X(C) be changed to read as follows: 11 "[Underwriters shall have] no further obligation or liability to any guaranty association other than the obligation to recognize as valid the assignment of the policyowner's rights to the guaranty association and to treat the guaranty association as it would have treated the policyowner; provided, however, if any guaranty association makes any payment to or on behalf of any policyowner which is not fully reimbursed pursuant to the foregoing provisions, that association shall receive from [Underwriters] each year until fully reimbursed a portion of [Underwriters'] statutory net gain from operations after dividends to policyowners, federal income taxes and the payments to be made under Part XI equal to the annual premium in force for basic coverage in the state of that association on August 5, 1974, divided by the total annual premiums in force for basic coverage of [Underwriters] on August 5, 1974." Id., at 105 (emphasis added). 12 After a full hearing in which the North Carolina Association participated, the Rehabilitation Court tentatively approved the Proposed Plan, including the above modification. The court directed the Rehabilitator to send notice to all interested persons that on October 14, 1976, a final hearing would be held on the Plan and the settlement of all claims against Underwriters. The notice sent by the Rehabilitator to Underwriters, the North Carolina Commissioner of Insurance, and all other interested parties specified that "[t]he Proposed Rehabilitation Plan provides in part XIII that upon [its] final approval . . ., all claims against [Underwriters] by policyowners or others are compromised and dismissed." At the request of the eight guaranty associations, the Rehabilitation Court subsequently approved a special mailing to policyholders in their respective States explaining that the guaranty associations were statutorily obligated under certain circumstances to continue to provide the benefits compromised by the Indiana court under the Rehabilitation Plan. 13 In November 1976, after holding final hearings in which the North Carolina Association participated, the Rehabilitation Court approved a Plan of Rehabilitation, which was, with respect to issues relevant here, identical to the Proposed Plan. In its order adopting this Plan, the Rehabilitation Court stated that it had "jurisdiction over the subject matter and over the parties, including all [Underwriters] policyowners . . . [and] state insurance guaranty associations." App. 38. Further, the court specified that "[t]o the extent that any claim, objection or proposal which was or could have been presented in this rehabilitation proceeding is inconsistent with the Plan, that claim, objection or proposal is overruled and relief to that extent denied." Id., at 40 (emphasis added). The court went on to state that "[t]his Order is final as to all matters occurring prior to the date of this Order." Finally, the Rehabilitation Court retained jurisdiction "to resolve all questions as to interpretation . . . of the Plan," and "to modify . . . the Plan in any respect in the light of future developments." Id., at 42. Notice of the court's order adopting the final plan was sent to all interested parties, including all policyowners, state insurance commissioners, and the eight guaranty associations. No appeal was taken from this order, and Underwriters was released from rehabilitation in February 1977. 14 On June 8, 1977, Underwriters and the eight guaranty associations, including the North Carolina Association, invoked the Rehabilitation Court's continuing jurisdiction to request that it approve a "Service Contract," under which Underwriters would continue to service policyowners residing in these States at pre-rehabilitation levels in return for a fee paid by the associations. The Rehabilitation Court approved the proposed contract and directed that Underwriters and the associations execute this agreement "in substantially the form" presented to the court.7 Pursuant to this order, Underwriters and seven of the guaranty associations executed the Service Contract without incident. Before the North Carolina Association executed its Service Contract, however, it made an addition to the document previously presented to the court. Specifically referring to Underwriters' $100,000 deposit in North Carolina for the first time since it had intervened in the rehabilitation proceeding 16 months before, the North Carolina Association added the following paragraph to the Service Contract approved by the court: 15 "It is expressly agreed, however, that the Guaranty Association and Underwriters explicitly reserve all their rights and remedies in connection with any deposits made by Underwriters with the Commissioner of Insurance of North Carolina, including deposits understood to total One Hundred Thousand Dollars ($100,000.00), which rights and remedies are governed by North Carolina law." E.B. 34. 16 Underwriters signed the revised agreement, but it made clear in a cover letter accompanying the signed agreement its understanding that the above paragraph was intended only to preserve any future rights that the North Carolina Association may have in the $100,000 deposit. Any other interpretation of this paragraph, the letter concluded, would be unacceptable because the "Plan of Rehabilitation had the effect of shutting off rights that North Carolina citizens and/or the Guaranty Association might otherwise have had to the deposits" prior to rehabilitation. Id., at 35. 17 The North Carolina Association responded to this letter by filing suit against Underwriters, the North Carolina Commissioner of Insurance, and the State Treasurer, in the Superior Court of Wake County, N.C. The complaint prayed for a declaratory judgment that the North Carolina Association was entitled to use the $100,000 deposit to fulfill the pre-rehabilitation contractual obligations to North Carolina policyowners that had been compromised in the rehabilitation proceeding. The North Carolina Commissioner and Treasurer filed a cross-claim against Underwriters, also requesting that the deposit be liquidated for the benefit of the North Carolina Association and North Carolina policyholders. Underwriters answered, asserting that the Indiana judgment was res judicata as to any pre-rehabilitation claims against the deposit, and therefore was entitled to full faith and credit in the North Carolina courts. 18 Invoking the Rehabilitation Court's continuing jurisdiction to resolve all questions involving the interpretation of the Plan, Underwriters filed a petition for instructions in July 1978. The Rehabilitation Court granted the petition, and sent notice to the North Carolina Association, the North Carolina Commissioner and Treasurer, and to all other parties to the rehabilitation proceeding. On September 22, 1978, the Rehabilitation Court held a hearing, at which both Underwriters and the North Carolina Association appeared and presented their respective full-faith-and-credit claims. In an opinion dated November 22, 1978, the Rehabilitation Court held that the 1976 Rehabilitation Plan "fully adjudicated and determined that the North Carolina deposit was an asset of . . . Underwriters, and any claim existing as of the date of adoption of the Plan . . . was compromised, settled and dismissed by the final Order and the Plan." App. to Pet. for Cert. 38A. In reaching this conclusion, the Rehabilitation Court specifically noted that the North Carolina Association had never made any claim to the deposit, even though the $100,000 had been included, without objection, in the general assets of Underwriters listed in Part V of the Plan. See n. 4, supra. The court went on to state that, although it probably had the power to enjoin the North Carolina Association from proceeding in North Carolina, it declined to do so because it believed that the North Carolina state court would recognize its judgment as binding.8 19 After receiving the Rehabilitation Court's ruling, Underwriters moved for summary judgment in the North Carolina state trial court, as did the respondents, the North Carolina Association and the North Carolina officials. The trial court entered summary judgment in favor of the respondents, reasoning that it was the only court with the "requisite subject matter jurisdiction to determine the rights of North Carolina policyholders in the special deposits made by [Underwriters] for their protection." App. to Pet. for Cert. 25A. While noting that the Indiana court did not have in personam jurisdiction over the North Carolina officials or over the North Carolina policyholders, the court held that "[a]n appearance in the Indiana insolvency proceeding by any of the parties having an interest in the deposit . . . could not constitute a waiver of the Indiana Court's lack of subject matter jurisdiction with regard to the deposit." Ibid. As a result, the North Carolina trial court refused to honor the judgment of the Rehabilitation Court. The trial court directed the Commissioner of Insurance to liquidate the deposit to reimburse the North Carolina Association for satisfying the pre-rehabilitation claims of North Carolina policyholders. 20 On appeal, the North Carolina Court of Appeals affirmed, substantially for the reasons expressed by the trial court. 48 N.C.App. 508, 269 S.E.2d 688 (1980). The Court of Appeals emphasized that the North Carolina Association sought to protect "statutory," as opposed to "contractual," rights; that title and rights to the $100,000 were vested by law in the State Commissioner and Treasurer, thus depriving the Rehabilitation Court of subject matter jurisdiction over the deposit; and that the Rehabilitation Court did not have in personam jurisdiction over these officials. Id., at 517, 269 S.E.2d, at 694. The Court of Appeals concluded that the deposit could never be an asset of Underwriters, and that the Rehabilitation Court's decision to the contrary was not entitled to full faith and credit. The North Carolina Supreme Court declined to grant discretionary review. 301 N.C. 527, 273 S.E.2d 453 (1980). II 21 The concept of full faith and credit is central to our system of jurisprudence. Ours is a union of States, each having its own judicial system capable of adjudicating the rights and responsibilities of the parties brought before it. Given this structure, there is always a risk that two or more States will exercise their power over the same case or controversy, with the uncertainty, confusion, and delay that necessarily accompany relitigation of the same issue. See Sherrer v. Sherrer, 334 U.S. 343, 355, 68 S.Ct. 1087, 1092, 92 L.Ed. 1429 (1948); Riley v. New York Trust Co., 315 U.S. 343, 348-349, 62 S.Ct. 608, 611-612, 86 L.Ed. 885 (1942). Recognizing that this risk of relitigation inheres in our federal system, the Framers provided that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." U.S.Const., Art. IV, § 1. This Court has consistently recognized that, in order to fulfill this constitutional mandate, "the judgment of a state court should have the same credit, validity, and effect, in every other court of the United States, which it had in the state where it was pronounced." Hampton v. McConnel, 3 Wheat. 234, 235, 4 L.Ed. 378 (1818) (Marshall, C.J.); Riley v. New York Trust Co., supra, 315 U.S., at 353, 62 S.Ct., at 614.9 22 To be sure, the structure of our Nation as a union of States, each possessing equal sovereign powers, dictates some basic limitations on the full-faith-and-credit principles enumerated above. Chief among these limitations is the caveat, consistently recognized by this Court, that "a judgment of a court in one State is conclusive upon the merits in a court in another State only if the court in the first State had power to pass on the merits—had jurisdiction, that is, to render the judgment." Durfee v. Duke, 375 U.S. 106, 110, 84 S.Ct. 242, 244, 11 L.Ed.2d 186 (1963).10 Consequently, before a court is bound by the judgment rendered in another State, it may inquire into the jurisdictional basis of the foreign court's decree. If that court did not have jurisdiction over the subject matter or the relevant parties, full faith and credit need not be given. See Nevada v. Hall, 440 U.S. 410, 421, 99 S.Ct. 1182, 1188, 59 L.Ed.2d 416 (1979). 23 The North Carolina courts relied on this limitation in refusing to give full faith and credit to either the 1976 judgment or the 1978 judgment of the Rehabilitation Court. Respondents argue, and the North Carolina courts held, that the Rehabilitation Court was powerless to determine that the North Carolina deposit was an asset of Underwriters. Specifically, respondents contend that the Rehabilitation Court lacked both jurisdiction over the subject matter and jurisdiction over the relevant parties. A. 24 The North Carolina courts held that the Guaranty Act and the Deposit Act deprived the Rehabilitation Court of the subject matter jurisdiction to determine rights in the $100,000 deposit. Regardless of the validity of this holding as a matter of North Carolina law,11 it is not an appropriate ground for refusing to accord the Indiana judgments full faith and credit under the facts of this case. In relying on this ground, the courts below failed to recognize the limited scope of review one court may conduct to determine whether a foreign court had jurisdiction to render a challenged judgment.12 25 This Court has long recognized that "[t]he principles of res judicata apply to questions of jurisdiction as well as to other issues." American Surety Co. v. Baldwin, 287 U.S. 156, 166, 53 S.Ct. 98, 101, 77 L.Ed. 231 (1932). See also Treinies v. Sunshine Mining Co., 308 U.S. 66, 78, 60 S.Ct. 44, 50, 84 L.Ed. 85 (1939); Davis v. Davis, 305 U.S. 32, 59 S.Ct. 3, 83 L.Ed. 26 (1938). Any doubt about this proposition was definitively laid to rest inDurfee v. Duke, supra, 375 U.S. at 111, 84 S.Ct. at 245, where this Court held that "a judgment is entitled to full faith and credit—even as to questions of jurisdiction—when the second court's inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment."13 The North Carolina courts, therefore, should have determined in the first instance whether the Rehabilitation Court fully and fairly considered the question of subject matter jurisdiction over the North Carolina deposit, with respect to pre-rehabilitation claims of the parties before it. If the matter was fully considered and finally determined in the rehabilitation proceedings, the judgment was entitled to full faith and credit in the North Carolina courts. 26 From our examination of the record, we have little difficulty concluding that the Rehabilitation Court fully and fairly considered whether it had subject matter jurisdiction to settle the pre-rehabilitation claims of the parties before it to the North Carolina deposit. As we noted earlier, in addition to being a state court of general jurisdiction, the Rehabilitation Court also has special duties with respect to the rehabilitation of insurance companies. See n. 1, supra. In its November 1976 order approving the Rehabilitation Plan, the Rehabilitation Court made it clear that it was asserting both subject matter jurisdiction over all pre-rehabilitation claims against Underwriters, including those of the guaranty associations, and personal jurisdiction over the North Carolina Association and Underwriters. See App. 39, 53. Furthermore, as our recitation of the events leading up to the Rehabilitation Court's 1976 order indicates, that court was aware of potential claims that the North Carolina Association might assert against Underwriters. In order to ensure that all such claims were definitively resolved during the rehabilitation proceeding, the Rehabilitation Court notified the Association that it must either intervene in the rehabilitation proceeding to make objections to, or suggest changes in, the Proposed Plan of Rehabilitation, or specifically waive all such claims. See supra, at 698. Finally, the record indicates that, after the North Carolina Association intervened in the rehabilitation proceeding, it negotiated certain changes in Part X(C) of the Proposed Plan of Rehabilitation, concerning Underwriters' liability to the guaranty associations for payments made to Underwriters' policyowners.14 See supra, at 698-699. 27 The North Carolina Association relies on the failure of the Rehabilitation Court either to specify that it was extinguishing the Association's right to use the $100,000 deposit to satisfy pre-rehabilitation obligations, or to address the argument that only North Carolina courts have subject matter jurisdiction to settle rights to the deposit. This reliance is misplaced. First, any doubts that the North Carolina Association may have had concerning the extent to which the Rehabilitation Court purported to exercise its jurisdiction over the Association's rights to the deposit were definitively settled by that court's 1978 ruling. Supra, at 702. After considering the arguments now advanced by the North Carolina Association, the Rehabilitation Court ruled that its 1976 order had "fully adjudicated and determined that the North Carolina deposit was an asset of . . . Underwriters, and any claim existing as of the date of adoption of the Plan against the deposit by the North Carolina Association . . . was compromised, settled and dismissed by the final Order and the Plan."15 App. to Pet. for Cert. 38A. 28 Second, it is undisputed that the at the Rehabilitation Court had listed the North Carolina deposit as a general asset of Underwriters to be included in the Plan of Rehabilitation.16 By listing the deposit as a general asset, the Rehabilitation Court announced its intention to assert jurisdiction over pre-rehabilitation claims to the deposit.17 As an intervening party to the rehabilitation proceeding, the North Carolina Association was obliged to advance its argument that the Rehabilitation Court did not have the authority to settle pre-rehabilitation claims to the deposit when it was given the opportunity to do so. A party cannot escape the requirements of full faith and credit and res judicata by asserting its own failure to raise matters clearly within the scope of a prior proceeding. See Sherrer v. Sherrer, 334 U.S., at 352, 68 S.Ct., at 1091. The Indiana Rehabilitation Court gave the North Carolina Association sufficient notice that any pre-rehabilitation claim that it had against the North Carolina deposit, including its argument that the Rehabilitation Court was without jurisdiction to extinguish its claim to the deposit, had to be advanced in the rehabilitation proceeding. No such claim having been made, the Rehabilitation Court finally determined the issue when it approved the Plan, and ruled that all claims inconsistent with the Plan,18 which could have been presented in the rehabilitation proceeding, were "overruled and relief to that extent denied." App. 40. The issue having been fully and fairly considered by the Indiana court, its final determination was entitled to full faith and credit in North Carolina.19 B 29 Alternatively, respondents argue that the judgment of the Rehabilitation Court was not entitled to full faith and credit because that court lacked in personam jurisdiction over the North Carolina policyowners and the state officials. Although under different circumstances these questions might give us pause, it is clear that the Rehabilitation Court had personal jurisdiction over all parties necessary to its determination that the North Carolina Association could not satisfy pre-rehabilitation claims out of the North Carolina deposit. 30 Respondents argue that the Rehabilitation Court did not have jurisdiction over the policyowners because no policyowner actually appeared in the rehabilitation proceeding, and because the class representatives could not adequately represent the interests of policyowners in both deposit and nondeposit States.20 As a preliminary matter, we note that no North Carolina policyowner has complained about the Rehabilitation Plan, nor did any policyowner directly participate in either the North Carolina litigation or the proceedings before this Court.21 Furthermore, the North Carolina Association has not identified any interest in the North Carolina deposit that a policyowner might have, independent of the interests asserted here by the Association. The class representatives in the rehabilitation proceeding were instructed by the Rehabilitation Court to represent the interests of all past and present policyowners. See n. 20, supra. Although the North Carolina Association asserts that these representatives were inadequate, it never explains why the policyowners, as compared to the Association, would care whether the deposit was considered a general asset of Underwriters, unavailable for the Association's use in satisfying pre-rehabilitation claims. North Carolina law requires the Association to provide North Carolina policyowners with pre-rehabilitation coverage even if it cannot use the deposit to finance this obligation. See N.C. Gen.Stat. § 58-155.72(4) (Supp.1981). Therefore, these policyowners have no current interest in whether the North Carolina Association is allowed to liquidate the $100,000 deposit. The North Carolina courts' refusal to give the Indiana judgment full faith and credit, accordingly, cannot be supported by the alleged inadequate representation of this unidentified policyowner interest. 31 The argument that the Rehabilitation Court did not have jurisdiction over the North Carolina officials is more complex.22 The North Carolina Court of Appeals found that the Rehabilitation Court did not have jurisdiction over the trust property or over the statutory trustees. Citing this Court's decision in Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), respondents argue that absent jurisdiction over the trust corpus or the trustee, the Rehabilitation Court was powerless to adjudicate rights in the North Carolina deposit. Therefore, respondents argue, the judgment of the Rehabilitation Court is not entitled to full faith and credit, even as to parties admittedly subject to its jurisdiction. 32 Respondents' reliance on Hanson v. Denckla, supra, is misplaced. In Hanson, this Court considered both a Florida judgment on direct review, and a Delaware judgment refusing to accord full faith and credit to the Florida judgment. Because the Florida judgment was before the Court on direct review, the Court was free to determine whether that court's exercise of jurisdiction over the trust or the trustee was appropriate. This Court determined that the Florida courts were without jurisdiction over either the trust or the trustee who, under Florida law, was a necessary party to a suit to determine the validity of the trust. As a result, of course the Delaware courts were under no obligation to accord full faith and credit to a judgment rendered in a court without jurisdiction. 33 In this case, however, the Rehabilitation Court's conclusion that it had jurisdiction to compromise the claims of the parties before it to the North Carolina deposit is not presented to this Court on direct review, and we express no opinion on the propriety of this conclusion. Although the Rehabilitation Court did not attempt to exercise jurisdiction over the North Carolina trustees, that court did purport to exercise jurisdiction over the trust corpus.23 The 1978 order specifies that the 1976 Rehabilitation Plan determined that the North Carolina deposit was an asset of Underwriters, subject to the jurisdiction of the Rehabilitation Court. This conclusion may well have been erroneous as a matter of North Carolina law. See State ex rel. Ingram v. Reserve Insurance Co., 303 N.C. 623, 629, 281 S.E.2d 16, 20 (1981). Erroneous or not, however, this jurisdictional issue was fully and fairly litigated and finally determined by the Rehabilitation Court. Under Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963), and its progeny, once the Rehabilitation Court determined that the North Carolina Association could not liquidate the deposit to settle pre-rehabilitation claims, the North Carolina courts were required to honor that determination, even though the Rehabilitation Court did not assert personal jurisdiction over the trustees. See supra, at 706-707. S.E.2d 16. It is beyond dispute that a court of competent jurisdiction can settle the claims of two competing parties to specific property even though a third party may claim an interest in the same res. See Morris v. Jones, 329 U.S. 545, 67 S.Ct. 451, 91 L.Ed. 488 (1947). The Rehabilitation Court held that the Rehabilitation Plan extinguished the claim that the North Carolina Association is now asserting, and the North Carolina courts erred in refusing to give that court's judgment full faith and credit. C 34 Respondents argue that requiring North Carolina to give full faith and credit to the Rehabilitation Court's determination that the deposit was an asset of Underwriters, would negate that State's comprehensive statutory scheme to ensure the protection of North Carolina policyowners. Respondents contend that the courts and commentators are virtually unanimous in their support of a State's right to segregate assets of a foreign insurance company to be used for the sole benefit of that State's policyowners. See 2 G. Couch, Insurance Law § 22:96 (2d ed. 1959); 5 J. Joyce, Law of Insurance § 3595 (2d ed. 1918). Cf. Blake v. McClung, 172 U.S. 239, 257, 19 S.Ct. 165, 172, 43 L.Ed. 432 (1898). It would not be equitable, respondents conclude, to require North Carolina to honor such a clearly erroneous result. While these arguments may have merit as a matter of insurance law, the only forums in which respondents may challenge the Rehabilitation Court's assertion of jurisdiction on these legal and equitable grounds are in Indiana.24 The North Carolina Association's decision to assert these arguments in a separate proceeding in North Carolina has resulted in two state courts reaching mutually inconsistent judgments on the same issue. This is precisely the situation the Full Faith and Credit Clause was designed to prevent. Because we find that North Carolina was obligated to give full faith and credit to the judgment of the Rehabilitation Court, we reverse the decision of the North Carolina Court of Appeals and remand for further proceedings not inconsistent with this opinion.25 35 It is so ordered. 36 Justice WHITE, with whom Justices POWELL and STEVENS join, concurring in the judgment. 37 I agree with much of the discussion in the majority opinion on the scope and function of the principles of res judicata. I also agree with the majority that "it is clear that the Rehabilitation Court had personal jurisdiction over all parties necessary to its determination that the North Carolina Association could not satisfy pre-rehabilitation claims out of the North Carolina deposit." Ante, at 711. 38 The only parties over which the Indiana court needed jurisdiction in order to prohibit the Association from moving against the North Carolina deposit were the Association and Underwriters National Assurance Corp. (UNAC). It had jurisdiction over the latter in a rehabilitation proceeding, because Indiana was the State of incorporation; it had jurisdiction over the Association because, as the majority opinion amply demonstrates in Part I, the Association appeared before the court as a party and participated in the Rehabilitation Plan. With jurisdiction over UNAC and the Association, the Indiana court clearly had the authority to adjudicate the amount and character of the claim that the Association had against UNAC, including its claim against the North Carolina deposit. 39 This is true regardless of the jurisdiction the Indiana court may or may not have had over any other parties with potential interests in the controversial deposit. There are at least two such parties: the trustees and the North Carolina policyholders. In my view, the Indiana court did not have jurisdiction to determine the interests of either of these parties in the controverted fund. Neither of these parties appeared before the Indiana court, and I am quite unconvinced that the Indiana court had jurisdiction over the North Carolina deposit in the sense that it could adjudicate the validity of or scale down the lien on that fund held by nonappearing North Carolina policyholders and trustees. I agree with the majority, therefore, that it is proper for this Court to reserve at least the issue of whether the trustees "have an interest in the deposit, independent of that asserted by the North Carolina Association, which was not considered by the Rehabilitation Court." Ante, at 716, n. 25. As for the policyholders, as I understand the opinion of the North Carolina court, under North Carolina law the Association was subrogated to the rights of the policyholders when it entered the service contract and undertook to make the policyholders whole. The policyholders thus no longer have an independent interest in the deposit.* See 48 N.C.App. 508, 517, 269 S.E.2d 688, 649 (1980). 40 The authority of the Indiana court so to resolve the claims of the Association existed regardless of that court's jurisdiction over any particular asset of UNAC, including the North Carolina deposit. In Riehle v. Margolies, 279 U.S. 218, 49 S.Ct. 310, 73 L.Ed. 669 (1929), a creditor received a judgment against a corporation in state court. While the creditor's claim was being litigated in state court, a federal court appointed a receiver of the corporation's property. This Court held that the judgment from the state court regarding the creditor's claim had to be recognized as res judicata in the federal court, despite the fact that neither the corporation nor the receiver had undertaken to defend in the state court. The Court adopted a twofold distinction between control over claims and over assets: 41 "In so far as [a court order] determines, or recognizes a prior determination of the existence and amount of the indebtedness of the defendant to the several creditors seeking to participate, it does not deal directly with any of the property. [This] function, which is spoken of as the liquidation of a claim, is strictly a proceeding in personam. . . . There is no inherent reason why the adjudication of the liability of the debtor in personam may not be had in some court other than that which has control of the res." Id., at 224, 49 S.Ct., at 312. 42 The reasoning of Riehle was specifically applied to judgments between States under the Full Faith and Credit Clause in Morris v. Jones, 329 U.S. 545, 549, 67 S.Ct. 451, 454, 91 L.Ed. 488 (1947): "[T]he distribution of assets of a debtor among creditors ordinarily has a 'twofold aspect.' It deals 'directly with the property' when it fixes the time and manner of distribution. . . . But proof and allowance of claims are matters distinct from distribution." Id., at 548-549, 67 S.Ct., at 454. Thus, in my view, jurisdiction over the deposit is simply not relevant to the question of the res judicata effect of the Indiana court's judgment as to the Association. 43 The Rehabilitation Plan fully determined the nature of the claim that the Association would have against UNAC and established the manner in which it could collect on those claims. Ante, at 698-700. That decision must be given res judicata effect by the North Carolina court vis-a-vis the Association, unless the Indiana court failed to follow the procedural requirements of the Due Process Clause. I believe those requirements were met in this case, and, therefore, I concur in the judgment of the Court reversing the decision below. 1 The Indiana Rehabilitation Court is a court of general jurisdiction. In addition, the Rehabilitation Court is authorized by statute to oversee the actions of the Rehabilitator in formulating a plan of rehabilitation, to enter injunctions to prevent interference with either the Rehabilitator or the rehabilitation proceeding, and to enter the final order of rehabilitation. See Ind.Code § 27-1-4-1 et seq. (1976). 2 Three class actions and one individual lawsuit were stayed as a result of the Rehabilitation Court's order. Schultz v. Underwriters National Assurance Co., Civ. Action No. 74 C 2550 (ND Ill.) (class action on behalf of all Illinois policyowners); Honeycutt v. Underwriters National Assurance Co., Civ. Action No. 482-74-A (ED Va.) (class action on behalf of all Virginia policyowners); Hall v. Underwriters National Assurance Co., Civ. Action No. 75-L-1589-NE (ND Ala.) (class action on behalf of all policyowners in Madison County, Ala.); Meyer v. Guarantee Reserve Life Ins. Co., Cause No. 786-532 (Super.Ct. of King County, Wash.). These lawsuits alleged, inter alia, that Underwriters had fraudulently misled policyowners as to the financial condition of the company. 3 The court certified the class under Indiana Trial Rule 23(B)(3). Indiana Trial Rules are identical to the Federal Rules of Civil Procedure with respect to class actions. 4 The court file included a document listing Underwriters' assets. The North Carolina Association concedes that this document included the $100,000 deposit as a general asset of Underwriters. Brief for Respondents 11-12. 5 Underwriters had underwritten a large block of "noncancelable" disability insurance policies. These policies not only were guaranteed to be renewable at the same premium regardless of experience, but also entitled the policyowner to a refund of 80% of the premiums paid if no disability claims were asserted in a 10-year period. The Proposed Plan eliminated the 80% refund, and converted the policies from "noncancelable" to "guaranteed renewable," meaning that the policy was renewable at the policyowner's option, but the company could increase the premium. 6 The guaranty associations also requested that the court modify the plan in ways not relevant to the instant proceeding. 7 At the joint request of Underwriters and the associations, the Rehabilitation Court had approved the concept of a service contract prior to the adoption of the final Plan of Rehabilitation. Brief for Petitioner 11. 8 The North Carolina Association has appealed this ruling, but the Indiana Court of Appeals stayed consideration of its appeal pending this Court's resolution of this case. 9 This construction is also compelled by 28 U.S.C. § 1738, the statutory codification of this constitutional guarantee. This provision requires that "Acts, records and judicial proceedings . . . shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from which they are taken." 10 This limitation flows directly from the principles underlying the Full Faith and Credit Clause. It is axiomatic that a judgment must be supported by a proper showing of jurisdiction over the subject matter and over the relevant parties. One State's refusal to enforce a judgment rendered in another State when the judgment is void for lack of jurisdiction merely gives to that judgment the same "credit, validity, and effect" that it would receive in a court of the rendering State. 11 Respondents argue that because North Carolina courts have exclusive jurisdiction to determine rights in the deposit, they were not required to recognize the Indiana judgment. Even if we accept the argument that North Carolina courts have exclusive jurisdiction over the subject matter of this litigation, the rule of jurisdictional finality established in Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963), would still apply. See infra, at 1336. Respondents attempt to analogize this claim of exclusive jurisdiction to the exclusive jurisdiction each State has to control the administration of real property within its borders. See Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65 (1909); Clarke v. Clarke, 178 U.S. 186, 20 S.Ct. 873, 44 L.Ed. 1028 (1900). Respondents fail to recognize, however, that the Durfee Court explicitly refused to recognize an exception to the rule of jurisdictional finality for cases involving real property over which the State claims exclusive jurisdiction. 375 U.S., at 115, 84 S.Ct. at 247. 12 Respondents argue that the North Carolina court's determination of its own jurisdiction, as well as its determination that the Rehabilitation Court was without jurisdiction, is now entitled to this same limited scope of review. See Brief for Respondents 40. Although this argument would have force if Underwriters were collaterally attacking the North Carolina court's decision on jurisdiction, see Treinies v. Sunshine Mining Co., 308 U.S. 66, 78, 60 S.Ct. 44, 50, 84 L.Ed. 85 (1939), it has no application to this litigation: Underwriters is seeking direct review of the North Carolina court's judgment. Consequently, Underwriters need only argue that the North Carolina court erred in concluding that the Rehabilitation Court did not fully and fairly determine that it had jurisdiction to adjudicate rights in the deposit. 13 The need for finality within our federal system, see supra, at 703-704, applies with equal force to questions of jurisdiction. As this Court stated in Stoll v. Gottlieb, 305 U.S. 165, 172, 59 S.Ct. 134, 137, 83 L.Ed. 104 (1938): "After a party has his day in court, with opportunity to present his evidence and his view of the law, a collateral attack upon the decision as to jurisdiction there rendered merely retries the issue previously determined. There is no reason to expect that the second decision will be more satisfactory than the first." 14 The North Carolina Association argues that Part X(C) of the Proposed Plan explicitly recognizes its right to assert pre-rehabilitation claims against Underwriters. In its 1978 order, however, the Rehabilitation Court held that the claims asserted by the North Carolina Association in the North Carolina litigation would violate the Plan. App. to Pet. for Cert. 38A. Whether or not this ruling is correct is a matter to be decided by the Indiana courts on direct review, not in the North Carolina courts or in this Court on collateral attack. 15 Respondents argue that this 1978 order was not a de novo reexamination of the jurisdictional question, and therefore is of no independent significance. This argument misperceives the question addressed in the 1978 proceeding. In its 1976 order, the Rehabilitation Court retained jurisdiction over parties to the proceeding to resolve questions of interpretation, implementation, and application of the Plan. App. 42. The question whether the 1976 order included the North Carolina deposit as a general asset, thereby compromising any claim that the North Carolina Association might otherwise have had to the deposit, is clearly a question of interpretation and implementation of the Plan. The 1978 order specifying that the Rehabilitation Plan disposed of the North Carolina Association's prerehabilitation rights in the deposit is a binding judgment on the interpretation of the Plan rendered by a court that had retained jurisdiction over the issue. Although the North Carolina Association still may attack the 1978 order on direct appeal, see n. 8, supra, that order is entitled to full faith and credit in the North Carolina courts. See 1B J. Moore & T. Currier, Moore's Federal Practice ¶ 0.416[3] (1980). 16 Respondents argue that the deposit was incorrectly included as a general asset of Underwriters, rather than as a special asset reserved exclusively for the benefit of North Carolina policyowners. The propriety of including the deposit as a general asset, however, is irrelevant to the question whether the deposit was brought to the attention of the Rehabilitation Court. As we have consistently held, the fact that the rendering court may have made an error of law with respect to a particular question does not deprive its decision of the right to full faith and credit, so long as that court fully and fairly considered its jurisdiction to adjudicate the issue. See American Express Co. v. Mullins, 212 U.S. 311, 29 S.Ct. 381, 53 L.Ed. 525 (1909). If the North Carolina Association wished to argue that the Rehabilitation Court should not have included the deposit as a general asset, and consequently should have declined to exercise jurisdiction over the deposit, it should have done so in the rehabilitation proceeding. Having failed to do so, its only recourse is to assert these legal arguments on direct review before the Indiana courts; it cannot raise these contentions in a collateral attack on the judgment. 17 The document listing the North Carolina deposit as a general asset of Underwriters was called to the North Carolina Association's attention by the North Carolina Commissioner of Insurance as early as March 11, 1975. See E.B. 26. The Association argues that it was misled into believing that the deposit was not before the Rehabilitation Court because the deposit had been listed as a general asset of Underwriters, and not as a deposit held in trust for the sole benefit of North Carolina policyowners. However, the very fact that the $100,000 may have been erroneously included as a general asset subject to rehabilitation should have alerted the Association that the Indiana court was purporting to exercise jurisdiction over the deposit, and that, once a final plan of rehabilitation was approved, the Association's claim to use the North Carolina deposit to satisfy prerehabilitation obligations might be extinguished. Therefore, the North Carolina Association was obliged to object to this listing, which it believed to be erroneous, or to suffer the consequences. 18 The North Carolina Association's claim to the deposit is "inconsistent with the plan" because the deposit was included as a general asset of Underwriters, and therefore was included in the pool of resources upon which continued coverage to all policyowners was based. 19 The concurrence argues that the foregoing discussion of the Rehabilitation Court's assertion of jurisdiction over the deposit is unnecessary to the disposition of this case once it has been established that the court had personal jurisdiction over Underwriters and the North Carolina Association. See post, at 718. This argument misperceives both the nature of the jurisdiction asserted by the Rehabilitation Court and the North Carolina Association's challenge to that assertion of jurisdiction. Respondents do not dispute that the Rehabilitation Court had jurisdiction to settle all claims of the parties before it to the assets of Underwriters as part of its attempt to rehabilitate the company. They argue that the Rehabilitation Court's final resolution of claims against Underwriters does not preclude their action in North Carolina, however, because the North Carolina deposit is not an asset of Underwriters. Consequently, cases such as Riehle v. Margolies, 279 U.S. 218, 49 S.Ct. 310, 73 L.Ed. 669 (1929), and Morris v. Jones, 329 U.S. 545, 67 S.Ct. 451, 91 L.Ed. 488 (1947), are inapposite to the present situation. In those cases, as the concurrence correctly notes, this Court held that a court need not have jurisdiction over a debtor's property to determine whether a creditor had a legitimate claim against the debtor so long as it had personal jurisdiction over the creditor and the debtor. Those decisions do not hold, however, that a court with personal jurisdiction over the debtor and the creditor can adjudicate the creditor's claim against property not belonging to the debtor. Given the nature of the North Carolina Association's claim, the Rehabilitation Court's 1976 order must be given full faith and credit in the North Carolina courts so as to bar the Association's claims only if the Rehabilitation Court determined, rightly or wrongly, that the $100,000 deposit was an asset of Underwriters, and that it therefore had the power to compromise the pre-rehabilitation claims of the parties before it to that asset. As we indicate in text, this was precisely the reasoning used by the Rehabilitation Court in 1978 when it held that the 1976 Plan had compromised the North Carolina Association's claim to the deposit. The only basis asserted by the Rehabilitation Court, which had specifically retained jurisdiction to resolve all questions of interpretation of the Plan, for barring the North Carolina Association from proceeding against the deposit was that the Plan "fully adjudicated and determined that the North Carolina deposit was an asset of . . . Underwriters." App. to Pet. for Cert. 38A (emphasis added). 20 The Rehabilitation Court sent the North Carolina policyowners notice that they were included in the class of policyowners in the rehabilitation proceeding. None of the North Carolina policyowners opted out of this class. In the rehabilitation proceeding, the interests of the policyowners were advocated by the class representatives. 21 The North Carolina Association argues that the failure of the policyowners to appear in this litigation is not significant, because the Association is the legal representative of the policyowners, empowered to assert any claim that those policyowners might have against either Underwriters or the deposit. We accept this argument for purposes of this decision. 22 The North Carolina Association argues that the State of North Carolina has intentionally made these North Carolina officials necessary but unreachable parties in order to ensure that its courts will have exclusive jurisdiction over all claims concerning rights in any North Carolina deposit. Underwriters contends that, if this is true, the North Carolina statutory scheme violates the Commerce Clause. Because of our resolution of this case, we find it unnecessary to reach this issue. 23 Because we find that the Rehabilitation Court did purport to exercise jurisdiction over the trust, we do not have to address respondents' argument that Indiana law, like the Florida law at issue in Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), requires jurisdiction over the trust or the trustee before rights in a statutory trust can be compromised. The concurrence by arguing that personal jurisdiction over Underwriters and the North Carolina Association was sufficient to prevent the Association from litigating its claim to the deposit in North Carolina, seems to imply that Hanson is no longer dispositive on this point. 24 Indeed, in the Indiana appellate court's review of the 1978 order, the North Carolina Association may still have an opportunity to challenge the Rehabilitation Court's conclusion that it had jurisdiction over the deposit. 25 Underwriters urges us also to dismiss the cross-claim filed by the Commissioner of Insurance and the Treasurer of North Carolina because these state officials are mere "stakeholders" with no real interest in the deposit. Respondents reply that, as statutory trustees, these officials have a vital interest in the administration of deposits under their control. We have concluded that the North Carolina Association may not relitigate its claim to use the deposit to satisfy its obligations to North Carolina policyowners by arguing that the absence of the North Carolina officials deprived the Rehabilitation Court of jurisdiction. On the other hand, we recognize that, as a matter of state law, the North Carolina officials may have an interest in the deposit, independent of that asserted by the North Carolina Association, which was not considered by the Rehabilitation Court. In this Court, the respondent officials merely joined the arguments made by the North Carolina Association, and did not identify any independent claim that they might make against the deposit. Because this is purely a question of state law, on remand the North Carolina courts may determine whether, consistent with this opinion, these officials have any independent interest in the North Carolina deposit that was not determined in the Indiana proceeding. * Since the policyholders and the Association appear to be the only possible beneficiaries of the trust, the trustees may have no beneficial interest to protect. This, however remains a matter of state law.

89

455 U.S. 720 102 S.Ct. 1373 71 L.Ed.2d 580 UNITED STATES, Petitionerv.NEW MEXICO, et al. No. 80-702. Argued Dec. 8, 1981. Decided March 24, 1982. Syllabus Sandia Corporation and Zia Company have contracts with the Federal Government to manage certain Government-owned atomic laboratories located in New Mexico. Los Alamos Constructors, Inc., has a Government contract for construction and repair work at one of the laboratories. The contracts use an "advanced funding" procedure to meet contractor costs whereby the contractor is allowed to pay creditors and employees with drafts drawn on a special bank account in which United States Treasury funds are deposited, so that only federal funds are expended when the contractor meets its obligations. New Mexico imposes a gross receipts tax and a compensating use tax on those doing business within the State. The gross receipts tax in effect operates as a tax on the sale of goods and services. The use tax is imposed on property acquired out-of-state in a transaction that would have been subject to the gross receipts tax if it had occurred within the State. The Government brought suit in Federal District Court, seeking a declaratory judgment that advanced funds are not taxable gross receipts to the contractors; that the receipts of vendors selling property to the Government through the contractors cannot be taxed by the State; and that the use of Government-owned property by the contractors is not subject to the use tax. The District Court granted summary judgment for the Government. The Court of Appeals reversed, taking the view that the Government-contractor relationships in question did not so incorporate the contractors into the Government structure as to make them "instrumentalities of the United States" immune from the New Mexico taxes. Held: The contractors, as independent taxable entities, are not protected by the Constitution's guarantee of federal supremacy, and hence are subject to the state taxes in question. Pp. 730-744. (a) Federal immunity from state taxation cannot be conferred simply because the tax has an effect on the United States, or because the Federal Government shoulders the entire economic burden of the levy, or because the tax falls on the earnings of a contractor providing services to the Government. And where a use tax is involved, immunity cannot be conferred simply because the State levies the tax on the use of federal property in private hands, or, indeed, simply because the tax is paid with Government funds. Tax immunity is appropriate only when the state levy falls on the United States itself, or on an agency or instrumentality so closely connected to the Government that the two cannot realistically be viewed as separate entities, at least insofar as the activity being taxed is concerned. A finding of constitutional tax immunity therefore requires something more than the invocation of traditional agency notions. Pp. 730-738. (b) With respect to the New Mexico use tax, the contractors cannot be termed "constituent parts" of the Federal Government. The congruence of professional interests between the contractors and the Government is not complete, the contractors' relationship with the Government having been created for limited and carefully defined purposes. Allowing a State to apply use taxes to such entities does not offend the notion of federal supremacy. United States v. Boyd, 378 U.S. 39, 84 S.Ct. 1518, 12 L.Ed.2d 713. For similar reasons the New Mexico gross receipts tax must be upheld as applied to funds received by the contractors to meet salaries and internal costs. As to the tax on sales to the contractors, the facts that Sandia and Zia make purchases in their own names and presumably are themselves liable to the vendors, that the vendors are not informed that the Government is the only party with an independent interest in the purchase, and that the contractors need not obtain Government approval for each purchase, all demonstrate that the contractors have a substantial independent role in making purchases, and that the identity of interests between the Government and the contractors is far from complete. As a result, sales to Sandia and Zia are in neither a real nor a symbolic sense sales to the "United States itself." Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 74 S.Ct. 403, 98 L.Ed. 546, distinguished. The fact that title passes directly from the vendor to the Government cannot alone make the transaction a purchase by the United States, so long as the purchasing entity, in its role as purchaser, is sufficiently distinct from the Government. Pp. 738-743. 624 F.2d 111, 10 Cir., affirmed. George W. Jones, Chicago, Ill., for petitioner, pro hac vice, by special leave of Court. Daniel H. Friedman, Santa Fe, N.M., for respondents. Justice BLACKMUN delivered the opinion of the Court. 1 We are presented here with a recurring problem: to what extent may a State impose taxes on contractors that conduct business with the Federal Government? 2 * A. 3 This case concerns the contractual relationships between three private entities and the United States. The three agreements involved are typical in most respects of management contracts devised by the Atomic Energy Commission (AEC), now the Department of Energy (DOE).1 Like many of the Government's contractual undertakings, DOE management contracts generally provide the private contractor with its costs plus a fixed fee. But in several ways DOE agreements are a unique species of contract, designed to facilitate long-term private management of Government-owned research and development facilities. As the parties to this case acknowledge, the complex and intricate contractual provisions make it virtually impossible to describe the contractual relationship in standard agency terms. See App. 196-197; Hiestand & Florsheim, The AEC Management Contract Concept, 29 Federal B.J. 67 (1969) (Hiestand & Florsheim). While subject to the general direction of the Government, the contractors are vested with substantial autonomy in their operations and procurement practices.2 4 The first of the contractors, Sandia Corporation, was organized in 1949 as a subsidiary of Western Electric Company, Inc. Sandia manages the Government-owned Sandia Laboratories in Albuquerque, N. M., and engages exclusively in federally sponsored research. It receives no fee under its contract, and owns no property except for $1,000 in United States bonds that constitute its paid-in capital. But Sandia and Western Electric are guaranteed royalty-free, irrevocable licenses for any communications-related discoveries or inventions developed by most Sandia employees during the course of the contract, App. 34-35, and the company receives complete reimbursements for salary outlays and other expenditures. Id., at 40-42.3 5 The Zia Company, another of the contractors, is a subsidiary of Santa Fe Industries, Inc. Since 1946, Zia has performed a variety of management, maintenance, and related functions at the Government's Los Alamos Scientific Laboratory, for which it receives its costs as well as a fixed annual fee. While Zia owns property and performs private work, virtually none of its property is used in the performance of its contract with the Government, and all of its private activities are conducted away from Los Alamos by a separate work force. 6 The third contractor is Los Alamos Constructors, Inc. (LACI), since 1953 a subsidiary of Zia. LACI's operations are limited to construction and repair work at the Los Alamos facility. The company owns no tangible personal property and makes no purchases; it procures needed property and equipment through its parent, Zia. And like Zia, LACI receives its costs plus a fixed annual fee from the Government. 7 The management contracts between the Government and the three contractors have a number of significant features in common. As in most DOE atomic facility management agreements, the contracts provide that title to all tangible personal property purchased by the contractors passes directly from the vendor to the Government. App. 231a (Zia); id., at 34 (Sandia).4 Similarly, the Government bears the risk of loss for property procured by the contractors. Zia and LACI must submit an annual voucher of expenditures for Government approval. Id., at 20 (Zia); id., at 27 (LACI).5 And the agreements give the Government control over the disposition of all property purchased under the contracts, as well as over each contractor's property management procedures. Disputes under the contracts are to be resolved by a DOE contracting official. Id., at 128-129 (Zia standard terms) and 157-158 (Sandia standard terms). 8 On the other hand, the contractors place orders with third-party suppliers in their own names, and identify themselves as the buyers. See id., at 36-37 (Sandia contract) and 120 (Zia standard terms). Indeed, the Government acknowledged during discovery that Sandia, Zia, and LACI "may be . . . 'independent contractor[s],' rather than . . . 'servant[s]' for . . . given 'function[s] under' the contract[s] (e.g., directing the details of day-to-day . . . operations and the hiring and direct supervision of employees)," id., at 197, and the Government does not claim that the contractors are federal instrumentalities. Id., at 201; see Department of Employment v. United States, 385 U.S. 355, 87 S.Ct. 464, 17 L.Ed.2d 414 (1966). Similarly, the United States disclaims responsibility for torts committed by the contractors' employees, and maintains that such employees have no claim against the United States for labor-related grievances. See 624 F.2d 111, 116-117, n. 6 (CA10 1980). 9 Finally, and most importantly, the contracts use a so-called "advanced funding" procedure to meet contractor costs. Advanced funding, an accounting device developed shortly after the conclusion of the Manhattan Project, is designed to provide "up-to-date meaningful records of costs and controls of property," as well as to "speed up reimbursement of contractors." App. 204 (Fifth Semiannual Report of the Atomic Energy Commission (1949)). The procedure allows contractors to pay creditors and employees with drafts drawn on a special bank account in which United States Treasury funds are deposited.6 10 To put the advanced funding mechanism in place, the United States, the contractor, and a bank establish a designated bank account, pursuant to a three-party contract. The Government dispatches a letter of credit to a Federal Reserve Bank in favor of the contractor, making Treasury funds available in the designated account. The contractor pays its expenses by drawing on the account, at which time the bank or the contractor executes a payment voucher in an amount sufficient to cover the draft. The voucher is forwarded to the Federal Reserve Bank. The United States owns the account balance. See id., at 19-20, 84-90a, 109-113. As a result of all this, only federal funds are expended when the contractor makes purchases. If the Government fails to provide funding, the contractor is excused from performance of the contract, and the Government is liable for all properly incurred claims. 11 Prior to July 1, 1977, the Government's contracts with Sandia, Zia, and LACI did not refer to the contractors as federal "agents." On that date—some two years after the commencement of this litigation—the agreements were modified to state that each contractor "acts as an agent [of the Government] . . . for certain purposes," including the disbursement of Government funds and the "purchase, lease, or other acquisition" of property. Id., at 50-51, 55-56, 59-60. This was designed to recognize what was described as the "long-standing agency status and authority" of the contractors. Id., at 50, 55, 59. Thus it was made clear that Sandia and Zia were authorized to "pledge the credit of the United States," id., at 52 and 56, and the Government declared that it "considers all obligations properly incurred" in accordance with the contractual provisions to be Government obligations "from their inception." Id., at 52 (Sandia), 56 (Zia), and 60 (LACI). At the same time, however, the United States denied any intent "formally and directly [to] designat[e] the contractors as agents," id., at 64, and each modification stated that it did not "create rights or obligations not otherwise provided for in the contract." Id., at 52, 57, 61. B 12 New Mexico imposes a gross receipts tax and a compensating use tax on those doing business within the State. With limited exceptions, "[f]or the privilege of engaging in business, an excise tax equal to four per cent [4%] of gross receipts is imposed on any person engaging in business in New Mexico." N.M.Stat.Ann. § 72-16A-4 (Supp.1975).7 In effect, the gross receipts tax operates as a tax on the sale of goods and services. The State also levies a compensating use tax, equivalent in amount to the gross receipts tax, "[f]or the privilege of using property in New Mexico." § 72-16A-7. This is imposed on property acquired out-of-state in a "transaction that would have been subject to the gross receipts tax had it occurred within [New Mexico]." § 72-16A-7(A)(2).8 Thus the compensating use tax functions as an enforcement mechanism for the gross receipts tax by imposing a levy on the use of all property that has not already been taxed; the State collects the same percentage regardless of where the property is purchased. Neither tax, however, is imposed on the "receipts of the United States or any agency or instrumentality thereof," or on the "use of property by the United States or any agency or instrumentality thereof." §§ 72-16A-12.1, 72-16A-12.2. 13 Without objection, Zia and LACI each year paid the New Mexico gross receipts tax on the fixed fees they received from the Federal Government. But the Government argued that the contractors' other expenditures and operations are constitutionally immune from state taxation. In July 1975 the United States therefore initiated this suit in the United States District Court for the District of New Mexico, seeking a declaratory judgment that advanced funds are not taxable gross receipts to the contractors; that the receipts of vendors selling tangible property to the United States through the contractors cannot be taxed by the State; and that the use of Government-owned property by the contractors is not subject to the State's compensating use tax. App. 11-12.9 14 The District Court granted the United States summary judgment. Relying onKern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 74 S.Ct. 403, 98 L.Ed. 546 (1954), the court determined that the crucial inquiry is whether the contractors are "procurement agents" for the Government. The court answered that question in the affirmative, noting that the Government "maintains control over the contractors' procurement systems, property management and disposal practices, method of payment of operational costs, and other operations under the contracts." 455 F.Supp. 993, 997 (1978). That analysis led the court to identify an agency relationship existing even in the years prior to the 1977 contract modifications. Ibid. The court therefore held that the gross receipts tax cannot constitutionally be applied to purchases by the contractors; because the court viewed the compensating use tax as a correlative of the receipts tax, it determined that the use tax also was invalid as applied to Sandia, Zia, and LACI. Id., at 998. Finally, the court ruled that advanced funds do not serve as compensation to the contractors, and therefore cannot be taxed as gross receipts. Id., at 998-999. 15 The United States Court of Appeals for the Tenth Circuit reversed. 624 F.2d 111 (1980). In its view, this Court's decisions in the tax immunity area have been "more concerned with preserving the delicate financial balance between our co-existing sovereignties than with rigid adherence to agency law terminology." Id., at 116. Advanced funding, the court declared, "is simply another means of reimbursement devised by accountants to eliminate major weaknesses in the government's bookkeeping practices." Id., at 119. In meeting overhead and salaries with Government funds, the contractors were satisfying their own obligations, and they exercised dominion over the funds by issuing drafts to obligees. And insofar as the claims of third-party vendors are concerned, the court found federal "responsibility for properly incurred claims to be inherent in all cost-type contracts," id., at 119, n. 9; any number of businesses act under letters of credit from banks and other sureties, and the Federal Government itself finances a variety of organizations—including States and local governments—in such a manner. 16 The other contractual provisions relied on by the District Court—federal control over procurement systems, management practices, and the like—failed to impress the Court of Appeals. It concluded that the Government-contractor relationship, viewed as a whole, did not " 'so incorporat[e] [the contractors] into the government structure as to [make them] instrumentalities of the United States . . . .' " Id., at 118, quoting United States v. Boyd, 378 U.S. 39, 48, 84 S.Ct. 1518, 1524, 12 L.Ed.2d 713 (1964). And that Sandia received no fee for its services was of little consequence, in the court's view, because "decisions on the amount of fee, if any, to be paid a government contractor are not made primarily with agency consequences in mind." 624 F.2d, at 120. Since the 1977 contractual amendments by their terms added nothing of substance to the agreements, they did not affect the court's analysis. The District Court was directed to enter summary judgment for New Mexico. Id., at 121. 17 The United States sought certiorari, and we granted the writ to consider the seemingly intractable problems posed by state taxation of federal contractors. 450 U.S. 909, 101 S.Ct. 1346, 67 L.Ed.2d 332 (1981). II A. 18 With the famous declaration that "the power to tax involves the power to destroy," McCulloch v. Maryland, 4 Wheat. 316, 431, 4 L.Ed. 579 (1819), Chief Justice Marshall announced for the Court the doctrine of federal immunity from state taxation. In so doing he introduced the Court to what has become a "much litigated and often confused field," United States v. City of Detroit, 355 U.S. 466, 473, 78 S.Ct. 474, 478, 2 L.Ed.2d 424 (1958), one that has been marked from the beginning by inconsistent decisions and excessively delicate distinctions. 19 McCulloch itself relied on generalized notions of federal supremacy to invalidate a state tax on the Second Bank of the United States. The Court gave broad scope to state power: the opinion declined to "deprive the States of any resources which they originally possessed. It does not extend to . . . a tax imposed on the interest which the citizens of Maryland may hold in [the Bank], in common with other property of the same description throughout the State." 4 Wheat., at 436, 4 L.Ed. 579. Not long afterwards, however, Chief Justice Marshall, speaking for the Court, seemingly disregarded the McCulloch dictum in striking down a state tax on interest income from federal bonds, explaining that such levies cannot constitutionally fall on an "operation essential to the important objects for which the government was created." Weston v. City Council of Charleston, 2 Pet. 449, 467, 7 L.Ed. 481 (1829). During the following century the Court took to heart Weston's expansive analysis of federal tax immunity, invalidating, among many others, state taxes on the income of federal employees, Dobbins v. Commissioners of Erie County, 16 Pet. 435, 10 L.Ed. 1022 (1842); on income derived from property leased from the Federal Government, Gillespie v. Oklahoma, 257 U.S. 501, 42 S.Ct. 171, 66 L.Ed. 338 (1922); and on sales to the United States, Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218, 48 S.Ct. 451, 72 L.Ed. 857 (1928).10 20 These decisions, it has been said, were increasingly divorced both from the constitutional foundations of the immunity doctrine and from "the actual workings of our federalism," Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 490, 59 S.Ct. 595, 603, 83 L.Ed. 927 (1939) (Frankfurter, J., concurring), and in James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155 (1937), by a 5-4 vote, the Court marked a major change in course. Over the dissent's justifiable objections that it was "overrul[ing], sub silentio, a century of precedents," id., at 161, 58 S.Ct., at 221, the Court upheld a state tax on the gross receipts of a contractor providing services to the Federal Government: 21 " '[I]t is not necessary to cripple [the State's power to tax] by extending the constitutional exemption from taxation to those subjects which fall within the general application of non-discriminatory laws, and where no direct burden is laid upon the governmental instrumentality, and there is only a remote, if any, influence upon the exercise of the functions of government.' " Id., at 150, 58 S.Ct., at 216, quoting Willcuts v. Bunn, 282 U.S. 216, 225, 51 S.Ct. 125, 126, 75 L.Ed. 304 (1931). 22 The Court's more recent cases involving federal contractors generally have hewed to the James analysis. Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3 (1941), upheld a state tax on sales to a federal contractor, overruling Panhandle Oil Co. v. Mississippi ex rel. Knox, supra. Decisions such as United States v. City of Detroit, supra, have validated state use taxes on private entities holding federal property. 23 Even the Court's post-James decisions, however, cannot be set in an entirely unwavering line. United States v. Allegheny County, 322 U.S. 174, 64 S.Ct. 908, 88 L.Ed. 1209 (1944), invalidated a state property tax that included in the assessment the value of federal machinery held by a private party; 14 years later that decision in large part was overruled by United States v. City of Detroit, supra. See United States v. County of Fresno, 429 U.S. 452, 462-463, n. 10, 97 S.Ct. 699, 705, 50 L.Ed.2d 683 (1977). In Livingston v. United States, 364 U.S. 281, 80 S.Ct. 1611, 4 L.Ed.2d 1719 (1960), summarily aff'g 179 F.Supp. 9 (EDSC 1959), the Court, without opinion or citation, approved the invalidation of a state use tax as applied to a federal contractor. Yet United States v. Boyd, supra, upheld a virtually identical state tax, seemingly confining Livingston to its "extraordinary" facts. 378 U.S., at 45, n. 6, 84 S.Ct., at 1522. 24 Similarly, the decisions fail to speak with one voice on the relevance of traditional agency rules in determining the taximmunity status of federal contractors. Thus, Alabama v. King & Boozer, supra, declined to find immunity in part because the contractors involved lacked the "status of agents," 314 U.S., at 13, 62 S.Ct., at 47, and United States v. Township of Muskegon, 355 U.S. 484, 486, 78 S.Ct. 483, 485, 2 L.Ed.2d 436 (1958), upheld a use tax on a federal contractor with the caveat that the "case might well be different if [the contractor] . . . could properly be called a 'servant' of the United States in agency terms." See Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 74 S.Ct. 403, 98 L.Ed. 546 (1954). Yet James v. Dravo Contracting Co., supra, stated flatly that tax immunity is not dependent " 'upon the nature of the agents, or upon the mode of their constitution, or upon the fact that they are agents.' " 302 U.S., at 154, 58 S.Ct., at 218, quoting Railroad Co. v. Peniston, 18 Wall. 5, 36, 21 L.Ed. 787 (1873) (plurality opinion). And United States v. Boyd, supra, rejected the Government's argument that its contractors were federal agents and therefore tax immune, stating simply that the private entities were not "instrumentalities of the United States." 378 U.S., at 48, 84 S.Ct., at 1524. B 25 We have concluded that the confusing nature of our precedents counsels a return to the underlying constitutional principle. The one constant here, of course, is simple enough to express: a State may not, consistent with the Supremacy Clause, U.S.Const., Art. VI, cl. 2, lay a tax "directly upon the United States." Mayo v. United States, 319 U.S. 441, 447, 63 S.Ct. 1137, 1140, 87 L.Ed. 1504 (1943). While "[o]ne could, and perhaps should, read M'Culloch . . . simply for the principle that the Constitution prohibits a State from taxing discriminatorily a federally established instrumentality," First Agricultural Bank v. State Tax Comm'n, 392 U.S. 339, 350, 88 S.Ct. 2173, 2179, 20 L.Ed.2d 1138 (1968) (dissenting opinion), the Court has never questioned the propriety of absolute federal immunity from state taxation. And after 160 years, the doctrine has gathered "a momentum of authority that reflects, if not a detailed exposition of considerations of policy demanded by our federal system, certainly a deep instinct that there are such considerations. . . ." City of Detroit v. Murray Corp., 355 U.S. 489, 503-504, 78 S.Ct. 458, 491, 2 L.Ed.2d 441 (1958) (opinion of Frankfurter, J.). 26 But the limits on the immunity doctrine are, for present purposes, as significant as the rule itself. Thus, immunity may not be conferred simply because the tax has an effect on the United States, or even because the Federal Government shoulders the entire economic burden of the levy. That is the import of Alabama v. King & Boozer, where a sales tax was imposed on the gross receipts of a vendor selling to a cost-plus Government contractor. The Court found it constitutionally irrelevant that the United States reimbursed all the contractor's expenditures, including those going to meet the tax: the Government's right to be free from state taxation "does not spell immunity from paying the added costs, attributable to the taxation of those who furnish supplies to the Government and who have been granted no tax immunity." 314 U.S., at 9, 62 S.Ct., at 45. That the contractor is purchasing property for the Government is similarly irrelevant; in King & Boozer, title to goods purchased by the contractor vested in the United States immediately upon shipment by the seller. Id., at 13, 62 S.Ct., at 47. 27 Similarly, immunity cannot be conferred simply because the state tax falls on the earnings of a contractor providing services to the Government. James v. Dravo Contracting Co., supra. And where a use tax is involved, immunity cannot be conferred simply because the State is levying the tax on the use of federal property in private hands, United States v. City of Detroit, supra, even if the private entity is using the Government property to provide the United States with goods, United States v. Township of Muskegon, supra; City of Detroit v. Murray Corp., supra, or services, Curry v. United States, 314 U.S. 14, 62 S.Ct. 48, 86 L.Ed. 9 (1941); United States v. Boyd, supra. In such a situation the contractor's use of the property "in connection with commercial activities carried on for profit," is "a separate and distinct taxable activity." United States v. Boyd, 378 U.S., at 44, 84 S.Ct., at 1521-22. Indeed, immunity cannot be conferred simply because the tax is paid with Government funds; that was apparently the case in Boyd, where the contractor made expenditures under an advanced funding arrangement similar to the one involved here. Id., at 41, 84 S.Ct., at 1520. 28 What the Court's cases leave room for, then, is the conclusion that tax immunity is appropriate in only one circumstance: when the levy falls on the United States itself, or on an agency or instrumentality so closely connected to the Government that the two cannot realistically be viewed as separate entities, at least insofar as the activity being taxed is concerned. This view, we believe, comports with the principal purpose of the immunity doctrine, that of forestalling "clashing sovereignty," McCulloch v. Maryland, 4 Wheat., at 430, 4 L.Ed. 579, by preventing the States from laying demands directly on the Federal Government. See City of Detroit v. Murray Corp., 355 U.S., at 504-505, 78 S.Ct., at 491-492 (opinion of Frankfurter, J.). As the federal structure—along with the workings of the tax immunity doctrine11—has evolved, this command has taken on essentially symbolic importance, as the visible "consequence of that [federal] supremacy which the constitution has declared." McCulloch v. Maryland, 4 Wheat., at 436, 4 L.Ed. 579. At the same time, a narrow approach to governmental tax immunity accords with competing constitutional imperatives, by giving full range to each sovereign's taxing authority. See Graves v. New York ex rel. O'Keefe, 306 U.S., at 483, 59 S.Ct., at 599-600. 29 Thus, a finding of constitutional tax immunity requires something more than the invocation of traditional agency notions: to resist the State's taxing power, a private taxpayer must actually "stand in the Government's shoes." City of Detroit v. Murray Corp., 355 U.S., at 503, 78 S.Ct., at 491 (opinion of Frankfurter, J.). That conclusion is compelled by the Court's principal decisions exploring the nature of the Constitution's immunity guarantee. Chief Justice Hughes' opinion for the Court in James, which set the doctrine on its modern course, suggested that a state tax is impermissible when the taxed entity is "so intimately connected with the exercise of a power or the performance of a duty" by the Government that taxation of it would be " 'a direct interference with the functions of government itself.' " 302 U.S., at 157, 58 S.Ct., at 219, quoting Metcalf & Eddy v. Mitchell, 269 U.S. 514, 524, 46 S.Ct. 172, 174-75, 70 L.Ed. 384 (1926). And the point is settled by Boyd, the Court's most recent decision in the field. There, the Government argued that its contractors were tax-exempt because they were federal agents. Without any discussion of traditional agency rules the Court rejected that suggestion out-of-hand, declaring that "we cannot believe that [the contractors are] 'so assimilated by the Government as to become one of its constituent parts.' " 378 U.S., at 47, 84 S.Ct., at 1523, quoting United States v. Township of Muskegon, 355 U.S., at 486, 78 S.Ct., at 485. And the Court continued: 30 "Should the [Atomic Energy] Commission intend to build or operate the plant with its own servants and employees, it is well aware that it may do so and familiar with the ways of doing it. It chose not to do so here. We cannot conclude that [the contractors], both cost-plus contractors for profit, have been so incorporated into the government structure as to become instrumentalities of the United States and thus enjoy governmental immunity." 378 U.S., at 48, 84 S.Ct., at 1524. 31 The Court's other cases describing the nature of a federal instrumentality have used similar language: "virtually . . . an arm of the Government," Department of Employment v. United States, 385 U.S., at 359-360, 87 S.Ct., at 467-468; "integral parts of [a governmental department]," and "arms of the Government deemed by it essential for the performance of governmental functions," Standard Oil Co. v. Johnson, 316 U.S. 481, 485, 62 S.Ct. 1168, 1170, 86 L.Ed. 1611 (1942). 32 Granting tax immunity only to entities that have been "incorporated into the government structure" can forestall, at least to a degree, some of the manipulation and wooden formalism that occasionally have marked tax litigation—and that have no proper place in determining the allocation of power between coexisting sovereignties. In this case, for example, the Government and its contractors modified their agreements two years into the litigation in an obvious attempt to strengthen the case for nonliability. Yet the Government resists using its own employees for the tasks at hand—or, indeed, even formally designating Sandia, Zia, and LACI as agents—because it seeks to tap the expertise of industry, without subjecting its contractors to burdensome federal procurement regulations. See Hiestand & Florsheim, at 81; App. 182-184. Instead, the Government earnestly argues that its contractors are entitled to tax immunity because, among other things, they draw checks directly on federal funds, instead of waiting a time for reimbursement. Brief for United States 32-35. We cannot believe that an immunity of constitutional stature rests on such technical considerations, for that approach allows "any government functionary to draw the constitutional line by changing a few words in a contract." Kern-Limerick, Inc. v. Scurlock, 347 U.S., at 126, 74 S.Ct., at 412-413 (dissenting opinion). 33 If the immunity of federal contractors is to be expanded beyond its narrow constitutional limits, it is Congress that must take responsibility for the decision, by so expressly providing as respects contracts in a particular form, or contracts under particular programs. James v. Dravo Contracting Co., 302 U.S., at 161, 58 S.Ct., at 221; Carson v. Roane-Anderson Co., 342 U.S. 232, 234, 72 S.Ct. 257, 258, 96 L.Ed. 257 (1952). And this allocation of responsibility is wholly appropriate, for the political process is "uniquely adapted to accommodating the competing demands" in this area. Massachusetts v. United States, 435 U.S. 444, 456, 98 S.Ct. 1153, 1161, 55 L.Ed.2d 403 (1978) (plurality opinion). See United States v. City of Detroit, 355 U.S., at 474, 78 S.Ct., at 478. But absent congressional action, we have emphasized that the States' power to tax can be denied only under "the clearest constitutional mandate." Michelin Tire Corp. v. Wages, 423 U.S. 276, 293, 96 S.Ct. 535, 544, 46 L.Ed.2d 495 (1976). III 34 It remains to apply these principles to the Sandia, Zia, and LACI contracts. The Government concedes that the legal incidence of the gross receipts and use taxes falls on the contractors, Brief for United States 25, and we do not disagree. See United States v. New Mexico, 581 F.2d 803, 806 (CA10 1978). The issue, then, is whether the contractors can realistically be considered entities independent of the United States. If so, a tax on them cannot be viewed as a tax on the United States itself. 35 So far as the use tax is concerned, United States v. Boyd, supra, controls this case. The contracts at issue in Boyd were standard AEC management contracts, in all relevant respects identical to the ones here. The contractors performed maintenance and construction work at Government facilities, under the general direction of the Government. They procured materials, and paid for the goods with Government funds under an advanced funding arrangement; title passed directly from the vendor to the United States. The contractors owned none of the property involved, and received a fixed annual fee. Indeed, one of the contractor's purchase orders stated that it made purchases "for and on behalf of the Government." 378 U.S., at 42, n. 4, 84 S.Ct., at 1520, n. 4. And the Tennessee use tax did not differ in any significant way from the use tax now before us.12 36 As noted above, the Government argued that this close contractual relationship made the contractors federal agents, and therefore tax immune. Yet the Court had no difficulty upholding the application of the Tennessee tax, concluding that " '[t]he vital thing' is that [the contractors are] 'using the property in connection with [their] own commercial activities.' " Id., at 45, 84 S.Ct., at 1522, quoting United States v. Township of Muskegon, 355 U.S., at 486, 78 S.Ct., at 485. That the federal property involved was being used for the Government's benefit—something that by definition will be true in virtually every management contract—was irrelevant, for the contractors remained distinct entities pursuing "private ends," and their actions remained "commercial activities carried on for profit." 378 U.S., at 44, 84 S.Ct., at 1521-1522. For that reason, the contractors had not become "instrumentalities" of the United States. Id., at 48, 84 S.Ct., at 1524.13 37 The same factors are at work here. The tax, the taxed activity, and the contractual relationships do not differ from those involved in Boyd. The contractors here are privately owned corporations; "Government officials do not run [their] day-to-day operations nor does the Government have any ownership interest." First Agricultural Bank v. State Tax Comm'n, 392 U.S., at 354, 88 S.Ct., at 2181 (dissenting opinion). In contrast to federal employees, then, Sandia and its fellow contractors cannot be termed "constituent parts" of the Federal Government. It is true, of course, that employees are a special type of agent, and like the contractors here employees are paid for their services. But the differences between an employee and one of these contractors are crucial. The congruence of professional interests between the contractors and the Federal Government is not complete; their relationships with the Government have been created for limited and carefully defined purposes. Allowing the States to apply use taxes to such entities does not offend the notion of federal supremacy.14 38 For similar reasons, the New Mexico gross receipts tax must be upheld as applied to funds received by the contractors to meet salaries and internal costs. Once it is conceded that the contractors are independent taxable entities, it cannot be disputed that their gross income is taxable. This conclusion follows directly from James v. Dravo Contracting Co., supra, where the Court upheld a state tax reaching "gross amounts received from the United States." 302 U.S., at 137, 58 S.Ct., at 211. In any event, incurring obligations to achieve contractual ends is not significantly different from using property for the same purposes. And despite the Government's arguments, the use of advanced funding does not change the analysis. That device is, at heart, an efficient method of reimbursing contractors—something the Government has apparently recognized in contexts other than tax litigation. See App. 31 (Sandia contract), 189 (Ninth Semiannual Report of the Atomic Energy Commission (1951)), 191 (same). If receipt of advanced funding is coextensive with status as a federal instrumentality, virtually every federal contractor is, or could easily become, immune from state taxation. 39 New Mexico's tax on sales to the contractors presents a more complex problem. So far as the use tax discussed above is concerned, the subject of the levy is the taxed entity's beneficial use of the property involved. See United States v. Boyd, 378 U.S., at 44, 84 S.Ct., at 1521-1522. Unless the entity as a whole is one of the Government's "constituent parts," then, a tax on its use of property should not be seen as falling on the United States; in that situation the property is being used in furtherance of the contractor's essentially independent commercial enterprise. In the case of a sales tax, however, it is arguable that an entity serving as a federal procurement agent can be so closely associated with the Government, and so lack an independent role in the purchase, as to make the sale—in both a real and a symbolic sense—a sale to the United States, even though the purchasing agent has not otherwise been incorporated into the Government structure. 40 Such was the Court's conclusion in Kern-Limerick, Inc. v. Scurlock, supra, a decision on which the Government heavily relies. The contractor in that case identified itself as a federal procurement agent, and when it made purchases title passed directly to the Government; the purchase orders themselves declared that the purchase was made by the Government and that the United States was liable on the sale. Equally as important, the contractor itself was not liable for the purchase price, and it required specific Government approval for each transaction. See 347 U.S., at 120-121, 74 S.Ct., at 409-410. And, as the Court emphasized, the statutory procurement scheme envisioned the use of federal purchasing agents. Id., at 114, 74 S.Ct., at 406. The Court concluded that a sale to the contractor was in effect a sale to the United States, and therefore not a proper subject for the Arkansas sales tax.15 As we have noted elsewhere, Kern-Limerick "stands only for the proposition that the State may not impose a tax the legal incidence of which falls on the Federal Government." United States v. County of Fresno, 429 U.S., at 459-460, n. 7, 97 S.Ct., at 703. 41 We think it evident that the Kern-Limerick principle does not invalidate New Mexico's sales tax as applied to purchases made by the contractors here. Even accepting the Government's representation that it is directly liable to vendors for the purchase price, see Tr. of Oral Arg. 42-45,16 Sandia and Zia nevertheless make purchases in their own names—Sandia, in fact, is contractually obligated to do so, App. 37—and presumably they are themselves liable to the vendors. Vendors are not informed that the Government is the only party with an independent interest in the purchase, as was true in Kern-Limerick, and the Government disclaims any formal intention to denominate the contractors as purchasing agents. Similarly, Sandia and Zia need not obtain advance Government approval for each purchase.17 These factors demonstrate that the contractors have a substantial independent role in making purchases, and that the identity of interests between the Government and the contractors is far from complete. As a result, sales to Zia and Sandia are in neither a real nor a symbolic sense sales to the "United States itself." It is true that title passes directly from the vendor to the Federal Government, but that factor alone cannot make the transaction a purchase by the United States, so long as the purchasing entity, in its role as a purchaser, is sufficiently distinct from the Government. Alabama v. King & Boozer, 314 U.S., at 13, 62 S.Ct., at 47. 42 There is a final irony in this case. In Carson v. Roane-Anderson Co., 342 U.S. 232, 72 S.Ct. 257, 96 L.Ed. 257 (1952), the Court considered a state sales and use tax imposed on AEC management contractors. The terms of the contracts were in most relevant respects identical to the ones here, and insofar as they differed they established an even closer relationship between the Government and the contractors. See Brief for United States, O.T.1951, Nos. 186 and 187, pp. 8-12. The Court held that in the last sentence of § 9(b) of the Atomic Energy Act of 1946, 60 Stat. 765—which barred state or local taxation of AEC "activities" Congress had statutorily exempted the contractors from state taxation, because the operations of management contractors were Commission activities. 342 U.S., at 234, 72 S.Ct., at 258. Congress responded by repealing the last sentence of § 9(b), Pub.L. 262, 67 Stat. 575, in an attempt to "place the Commission and its activities on the same basis, with respect to immunity from State and local taxation, as other Federal agencies." S.Rep.No.694, 83d Cong., 1st Sess., 3 (1953). In doing so, Congress endorsed the principle that "constitutional immunity does not extend to cost-plus-fixed-fee contractors of the Federal Government, but is limited to taxes imposed directly upon the United States." Id., at 2. 43 We do not suggest that the repeal of § 9(b) waives the Government's constitutional tax immunity; Congress intended AEC contractors to be shielded by constitutional immunity principles "as interpreted by the courts." S.Rep.No.694, at 3. But it is worth remarking that DOE is asking us to establish as a constitutional rule something that it was unable to obtain statutorily from Congress. For the reasons set out above, we conclude that the contractors here are not protected by the Constitution's guarantee of federal supremacy. If political or economic considerations suggest that a broader immunity rule is appropriate, "[s]uch complex problems are ones which Congress is best qualified to resolve." United States v. City of Detroit, 355 U.S., at 474, 78 S.Ct., at 478. 44 Accordingly, the judgment of the Court of Appeals is 45 Affirmed. 1 Responsibility for the Nation's nuclear program was transferred from the AEC to the Energy Research and Development Administration in 1975, and to the Department of Energy in 1977. See Energy Reorganization Act of 1974, Pub.L. 93-438, 88 Stat. 1233, 42 U.S.C. § 5801 et seq.; Exec. Order No. 11834, 3 CFR 943 (1971-1975 Comp.); Department of Energy Organization Act, Pub.L. 95-91, 91 Stat. 565, 42 U.S.C. § 7101 et seq. (1976 ed., Supp.IV). 2 AEC management contracts were developed in an attempt to secure Government control over the production of fissionable materials, while making use of private industry's expertise and resources. See Carson v. Roane-Anderson Co., 342 U.S. 232, 234-236, 72 S.Ct. 257, 258-59, 96 L.Ed. 257 (1952); Tr. of Oral Arg. 4-6. 3 Sandia and its parent receive a variety of additional benefits from the contract. Most obviously, they develop expertise and acquire valuable technical information. See generally Newman, The Atomic Energy Industry: An Experiment in Hybridization, 60 Yale L. J. 1263, 1320-1321 (1951). They receive more tangible benefits as well: through Sandia's contract Western Electric is paid for furnishing a variety of products and services. See 624 F.2d 111, 120, n. 12 (CA10 1980). 4 LACI does not purchase goods, and the Government retains title to property it furnishes to the company. App. 29. 5 Sandia must obtain written approval before advancing suppliers or subcontractors more than $15,000, id., at 31, and must obtain written approval before entering into any "procurement transaction" involving more than $100,000. Id., at 36. 6 Advanced funding may be used whenever the program involved requires "advances to finance the recipient organization's activities," 31 CFR § 205.2(a) (1981). Recipients may include "any State and local government." § 205.3(a). 7 Since the initiation of this litigation the New Mexico tax statutes have been amended, and are now found at N.M.Stat.Ann. §§ 7-9-1 through 7-9-81 (1978). While the tax rate has been lowered to 3.5%, no other substantive change, pertinent here, has been made. For consistency, and to conform to the pleadings and primary references in the briefs, citations herein are to the old codification. 8 The statute also has a catchall provision, imposing the compensating use tax on property acquired in any transaction that was not initially subject to tax "but which transaction, because of the buyer's subsequent use of the property, should have been subject to the compensating tax." N.M.Stat.Ann. § 72-16A-7(A)(3) (Supp.1975). 9 Prior to 1967, the New Mexico Bureau of Revenue did not attempt to tax the contractors. In that year, the State sought to impose gross receipts and compensating use taxes on Zia and LACI for the period January 1, 1966, through June 30, 1967. The United States challenged the assessment, and the New Mexico Court of Appeals held that the State Commissioner of Revenue was estopped from assessing the taxes for the period in question. United States v. Bureau of Revenue, 87 N.M. 164, 531 P.2d 212 (1975). One judge, specially concurring, concluded that even if estoppel was unavailable, the taxes could not be imposed. Id., at 166, 531 P.2d, at 214. The New Mexico court did not address the constitutional validity of the tax. 10 It is in the case last cited that Justice Holmes in dissent, joined by Justice Brandeis and Justice Stone, countered the great Chief Justice's observation with other well-known words: "The power to tax is not the power to destroy while this Court sits." 277 U.S., at 223, 48 S.Ct., at 453. Justice Frankfurter, concurring, in Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 490, 59 S.Ct. 595, 603, 83 L.Ed. 927 (1939), observed: "The web of unreality spun from Marshall's famous dictum was brushed away by one stroke of Mr. Justice Holmes' pen." 11 With the abandonment of the notion that the economic—as opposed to the legal—incidence of the tax is relevant, it becomes difficult to maintain that federal tax immunity is designed to insulate federal operations from the effects of state taxation. It remains true, of course, that state taxes on contractors are constitutionally invalid if they discriminate against the Federal Government, or substantially interfere with its activities. See United States v. County of Fresno, 429 U.S. 452, 463, n. 11, 464, 97 S.Ct. 699, 705, n. 11, 705, 50 L.Ed.2d 683 (1977); Moses Lake Homes, Inc. v. Grant County, 365 U.S. 744, 81 S.Ct. 870, 6 L.Ed.2d 66 (1961); City of Detroit v. Murray Corp., 355 U.S. 489, 495, 78 S.Ct. 458, 461, 2 L.Ed.2d 441 (1958). New Mexico, however, is not discriminating here. 12 The Government advances only one ground for distinguishing Boyd ; it contends that the Tennessee use tax was a "privilege-type use tax," while New Mexico's is a "compensating use tax." Brief for United States 25, 39, n. 15; Reply Brief for United States 4. As we understand its argument, the Government means to suggest that Tennessee was attempting to tax the privilege of using property, while New Mexico's levy is designed only to enforce its gross receipts tax, and therefore should be analyzed as a sales tax. In our view, this distinction is without substance. The Tennessee tax at issue in Boyd imposed a general levy on those "exercising a taxable privilege" by "selling tangible personal property" or "us[ing] or consum[ing] . . . any item or article of tangible personal property," 12 Tenn.Code Ann. § 67-3003 (1963 Cum.Supp.), but the tax was not imposed if the sales or use tax had already been paid. § 67-3003(b). Section 67-3004 specifically applied this tax to the use of property by a contractor "unless such property has been previously subjected to a sales or use tax." The New Mexico use tax under consideration here operates in precisely the same way. Both taxes in terms reach the use of property; both have the effect of serving as enforcement mechanisms for the state sales tax. Both serve to ensure that either the sale or the use of all property in the hands of nonimmune entities will be taxed, no matter where the property is purchased. And both, in terms, tax the privilege of doing business in the State. See N.M.Stat.Ann. § 72-16A-4 (Supp.1975) (gross receipts tax imposed "[f]or the privilege of engaging in business"); § 72-16A-7 (use tax imposed "[f]or the privilege of using property"). In short, the two taxes have the same "practical operation and effect." City of Detroit v. Murray Corp., 355 U.S., at 493, 78 S.Ct., at 460. 13 The Government argues that the tax here is supported by Livingston v. United States, 364 U.S. 281, 80 S.Ct. 1611, 4 L.Ed.2d 1719 (1960), aff'g 179 F.Supp. 9 (EDSC 1959). There, the Court summarily affirmed the District Court's invalidation of a state sales and use tax, as applied to the purchase and use of property by an AEC contractor. The District Court noted the "extraordinary" nature of the contract involved, id., at 16, finding that the contractor had entered into the agreement entirely as a "contribution to the defense effort." Id., at 17. The contractor received a one dollar fee, and otherwise operated "without hope of gain," id., at 17-18. The District Court found that the research conducted and experience gained by the contractor's employees were unlikely to benefit the corporation. Id., at 23. And the court found that the contractor acted "as the alter ego of the [Atomic Energy] Commission." Id., at 18. Boyd distinguished Livingston by confining it to its "extraordinary" facts, finding crucial "the factual determination that [the Livingston contractor] received no benefits from the contract." 378 U.S., at 45, n. 6, 84 S.Ct., at 1522, n. 6. Livingston is inapplicable here for the same reasons. Zia and LACI, of course, receive fixed fees for their services. Sandia does not receive a cash fee, but it obtains obvious benefits from its contractual relationship with the United States. See supra, at 723-724, and n. 3. There has been no suggestion—let alone a finding below—that Sandia and Western Electric entered into the contract for only altruistic reasons. 14 While a use tax may be valid only to the extent that it reaches the contractor's interest in Government-owned property, cf. City of Detroit v. Murray Corp., 355 U.S., at 494, 78 S.Ct., at 461; United States v. Colorado, 627 F.2d 217 (CA10 1980), summarily aff'd sub nom. Jefferson County v. United States, 450 U.S. 901, 101 S.Ct. 1335, 67 L.Ed.2d 325 (1981), there has been no suggestion here that the contractors are being taxed beyond the value of their use. 15 Arkansas did not impose a corresponding use tax, and the Court therefore considered only whether the sale itself was a taxable transaction. 16 It is not entirely clear that the Government's representation is accurate. See, e.g., Continental Illinois Nat. Bank & Trust Co. of Chicago v. United States 112 Ct.Cl. 563, 81 F.Supp. 596 (1949) (no contract action against the United States in the Court of Claims absent privity of contract). In light of our conclusion about the significance of other aspects of the contracts, there is no need for us to address this issue. 17 For Zia and LACI the Government contents itself with an annual review of expenditures, App. 20, 27; for Sandia, it requires advance approval of transactions involving $100,000 or more. Id., at 36.

78

455 U.S. 678 102 S.Ct. 1349 71 L.Ed.2d 547 UNITED TRANSPORTATION UNION, Petitioner,v.LONG ISLAND RAILROAD COMPANY, et al. No. 80-1925. Argued Jan. 20, 1982. Decided March 24, 1982. Syllabus Respondent Railroad, formerly under private ownership, was acquired by New York State in 1966 and is engaged in interstate commerce. Some 13 years later, petitioner Union, representing the Railroad's employees, and the Railroad failed to reach an agreement after conducting collective-bargaining negotiations pursuant to the Railway Labor Act, and mediation efforts also failed to produce agreement. This triggered a 30-day cooling-off period under that Act, at the expiration of which the Act permits a union to resort to a strike. Anticipating that New York would challenge the Railway Labor Act's applicability to the Railroad, the Union sued in Federal District Court, seeking a declaratory judgment that the labor dispute was covered by that Act and not the Taylor Law, the New York law prohibiting strikes by public employees. The Railroad then filed suit in a New York state court, seeking to enjoin an impending strike by the Union under the Taylor Law. Before the state court acted, the Federal District Court held that the Railroad was subject to the Railway Labor Act and that that Act, rather than the Taylor Law, was applicable. The District Court rejected the Railroad's argument that application of the Railway Labor Act to a state-owned railroad was inconsistent with National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245, wherein it was held that Congress could not impose the requirements of the Fair Labor Standards Act on state and local governments. The Court of Appeals reversed, holding that the operation of the Railroad was an integral state governmental function, that the Railway Labor Act displaced "essential governmental decisions" involving that function, and that the State's interest in controlling the operation of the Railroad outweighed the federal interest in having the federal Act apply. Held : Application to a state-owned railroad of Congress' acknowledged authority to regulate labor relations in the railroad industry does not so impair a state's ability to carry out its constitutionally preserved sovereign function as to come in conflict with the Tenth Amendment. Pp. 682-690. (a) One of the requirements under National League of Cities, supra, at 852, 96 S.Ct. at 2474, for a successful claim that congressional commerce power is invalid is that a state's compliance with federal law would directly impair its ability to "structure integral operations in areas of traditional governmental functions." Operation of a railroad engaged in interstate commerce is clearly not an integral part of traditional state activities generally immune from federal regulation. And federal regulation of state-owned railroads, whether freight or passenger, simply does not impair a state's ability to function as a state. Pp. 683-686. (b) To allow individual states, by acquiring railroads, to circumvent the federal system of railroad collective bargaining, or any of the other elements of federal regulation of railroads, would destroy the longstanding and comprehensive uniform scheme of federal regulation of railroads and their labor relations thought essential by Congress and would endanger the efficient operation of the interstate rail system. Moreover, a state acquiring a railroad does so knowing that the railroad is subject to such scheme of federal regulation. Here, New York knew of and accepted federal regulation, and, in fact had operated under it for 13 years without claiming any impairment of its traditional sovereignty. Pp. 686-690. 634 F.2d 19, reversed and remanded. Edward D. Friedman, Washington, D. C., for petitioner. Joshua I. Schwartz, Washington, D. C., for the United States as amicus curiae, by special leave of Court. Lewis B. Kaden, Columbia Univ. School of Law, New York City, for respondent. CHIEF JUSTICE BURGER delivered the opinion of the Court. 1 We granted certiorari to decide whether the Tenth Amendment prohibits application of the Railway Labor Act to a state-owned railroad engaged in interstate commerce. 2 * The Long Island Rail Road (the Railroad), incorporated in 1834, provides both freight and passenger service to Long Island.1 In 1966, after 132 years of private ownership and a period of steadily growing operating deficits, the Railroad was acquired by New York State through the Metropolitan Transportation Authority. 3 Thereafter, the Railroad continued to conduct collective bargaining pursuant to the procedures of the Railway Labor Act. 44 Stat. (part 2) 577, as amended, 45 U.S.C. § 151 et seq. The United Transportation Union, petitioner in this case, represents the Railroad's conductors, brakemen, switchmen, firemen, motormen, collectors, and related train crew employees. In 1978, the Union notified the Railroad that it desired to commence negotiations and the parties began collective bargaining as provided by the Act. They failed to reach agreement during preliminary negotiations and, in April 1979, the Railroad and the Union jointly petitioned the National Mediation Board for assistance. Seven months of mediation efforts by the Board failed to produce agreement, however, and the Board released the case from mediation. This triggered a 30-day cooling-off period under the Act; absent Presidential intervention, the Act permits the parties to resort to economic weapons, including strikes, upon the expiration of the cooling-off period. 4 The Union anticipated the State's challenge to the applicability of the Act to the Railroad; on December 7, 1979, one day before the expiration of the 30-day cooling-off period, it sued in federal court seeking a declaratory judgment that the dispute was covered by the Railway Labor Act and not the Taylor Law, New York's law governing public employee collective bargaining and prohibiting strikes by public employees.2 The next day, the Union commenced what was to be a brief strike. Pursuant to the Act, the President of the United States intervened on December 14, thus imposing an additional 60-day cooling-off period which was to expire on February 13, 1980.3 A few days before the expiration of the 60-day period, the State converted the Railroad from a private stock corporation to a public benefit corporation, apparently believing that the change would eliminate Railway Labor Act coverage and bring the employees under the umbrella of the Taylor Law. 5 The Railroad then filed suit in state court on February 13, 1980, seeking to enjoin the impending strike under the Taylor Law. Before the state court acted, the United States District Court for the Eastern District of New York heard and decided the Union's suit for declaratory relief, holding that the Railroad was a carrier subject to the Railway Labor Act, that the Act, rather than the Taylor Law, was applicable, and that declaratory relief was in order. 509 F.Supp. 1300 (1980). 6 In a footnote the District Court rejected the argument now presented to this Court that application of the Act to a state-owned railroad was inconsistent with National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). 509 F.Supp., at 1306, n.4. The District Court noted that in National League of Cities, the Supreme Court "specifically held that the operation of a railroad in interstate commerce is not an integral part of governmental activity" and affirmed the rulings in California v. Taylor, 353 U.S. 553, 77 S.Ct. 1037, 1 L.Ed.2d 1034 (1957), and United States v. California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567 (1936), which held that the Railway Labor Act and the Safety Appliance Act could be applied to state-owned railroads. 509 F.Supp., at 1306, n. 4. 7 The Court of Appeals reversed, holding that the operation of the Railroad was an integral state governmental function and that the federal Act displaced "essential governmental decisions" involving that function. 634 F.2d 19 (CA2 1980). The court applied a balancing approach and held that the State's interest in controlling the operation of its railroad outweighed the federal interest in having the federal Act apply. 8 We granted certiorari, 452 U.S. 960, 101 S.Ct. 3107, 69 L.Ed.2d 970 (1981), and we reverse. II 9 There can be no serious question that, as both the District Court and the Court of Appeals held, the Long Island Railroad is subject to the terms of the Railway Labor Act,4 or that the Commerce Clause grants Congress the plenary authority to regulate labor relations in the railroad industry in general.5 This dispute concerns the application of this acknowledged congressional authority to a state-owned railroad; we must decide whether that application so impairs the ability of the State to carry out its constitutionally preserved sovereign function as to come into conflict with the Tenth Amendment.6 10 The Railroad claims immunity from the Railway Labor Act, relying on National League of Cities v. Usery, supra, where we held that Congress could not impose the requirements of the Fair Labor Standards Act on state and local governments.7 The Fair Labor Standards Act generally requires covered employers to pay employees no less than a minimum hourly wage and to pay them at one and one-half times their regular hourly rate for all time worked in any workweek in excess of 40 hours. Prior to 1974, the Act excluded most governmental employers. However in that year Congress amended the law to extend its provisions in somewhat modified form to "public agencies," including state governments and their political subdivisions.8 We held that the 1974 amendments were invalid "insofar as [they] operate to directly displace the States' freedom to structure integral operations in areas of traditional governmental functions. . . ." 426 U.S., at 852, 96 S.Ct. at 2474. (Emphasis supplied.) Only recently we had occasion to apply the National League of Cities doctrine in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). In holding that the Surface Mining and Reclamation Act of 1977, 30 U.S.C. § 1201 et seq. (1976 ed., Supp.IV), did not violate the Tenth Amendment by usurping state authority over land-use regulations, we set out a three-prong test to be applied in evaluating claims under National League of Cities : 11 "[I]n order to succeed, a claim that congressional commerce power legislation is invalid under the reasoning of National League of Cities must satisfy each of three requirements. First, there must be a showing that the challenged regulation regulates the 'States as States.' [426 U.S.], at 854 [96 S.Ct., at 2475]. Second, the federal regulation must address matters that are indisputably 'attributes of state sovereignty.' Id., at 845 [96 S.Ct. at 2471]. And third, it must be apparent that the States' compliance with the federal law would directly impair their ability 'to structure integral operations in areas of traditional governmental functions.' Id., at 852 [96 S.Ct., at 2474]." 452 U.S., at 287-288, 101 S.Ct., at 2366.9 12 The key prong of the National League of Cities test applicable to this case is the third one, which examines whether "the States' compliance with the federal law would directly impair their ability 'to structure integral operations in areas of traditional governmental functions.' " B 13 The determination of whether a federal law impairs a state's authority with respect to "areas of traditional [state] functions" may at times be a difficult one. In this case, however, we do not write on a clean slate. As the District Court noted, in National League of Cities we explicitly reaffirmed our holding in United States v. California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567 (1936), and in two other cases involving federal regulation of railroads:10 14 "The holding of United States v. California . . . is quite consistent with our holding today. There California's activity to which the congressional command was directed was not in an area that the States have regarded as integral parts of their governmental activities. It was, on the contrary, the operation of a railroad engaged in 'common carriage by rail in interstate commerce. . . .' 297 U.S., at 182 [56 S.Ct. at 423]." 426 U.S., at 854, n.18, 96 S.Ct. at 2475, n.18. 15 It is thus clear that operation of a railroad engaged in interstate commerce is not an integral part of traditional state activities generally immune from federal regulation under National League of Cities. See also Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 422-424, 98 S.Ct. 1123, 1141-42, 55 L.Ed.2d 364 (1978) (concurring opinion).11 The Long Island is concededly a railroad engaged in interstate commerce. 16 The Court of Appeals undertook to distinguish the three railroad cases discussed in National League of Cities, noting that they dealt with freight carriers rather than primarily passenger railroads such as the Long Island. That distinction does not warrant a different result, however. Operation of passenger railroads, no less than operation of freight railroads, has traditionally been a function of private industry, not state or local governments.12 It is certainly true that some passenger railroads have come under state control in recent years, as have several freight lines, but that does not alter the historical reality that the operation of railroads is not among the functions traditionally performed by state and local governments. Federal regulation of state-owned railroads simply does not impair a state's ability to function as a state. III 17 In concluding that the operation of a passenger railroad is not among those governmental functions generally immune from federal regulation under National League of Cities, we are not merely following dicta of that decision or looking only to the past to determine what is "traditional." In essence, National League of Cities held that under most circumstances federal power to regulate commerce could not be exercised in such a manner as to undermine the role of the states in our federal system. This Court's emphasis on traditional governmental functions and traditional aspects of state sovereignty was not meant to impose a static historical view of state functions generally immune from federal regulation. Rather it was meant to require an inquiry into whether the federal regulation affects basic state prerogatives in such a way as would be likely to hamper the state government's ability to fulfill its role in the Union and endanger its "separate and independent existence." 426 U.S., at 851, 96 S.Ct., at 2474. 18 Just as the Federal Government cannot usurp traditional state functions, there is no justification for a rule which would allow the states, by acquiring functions previously performed by the private sector, to erode federal authority in areas traditionally subject to federal statutory regulation. Railroads have been subject to comprehensive federal regulation for nearly a century.13 The Interstate Commerce Act—the first comprehensive federal regulation of the industry—was passed in 1887.14 A year earlier we had held that only the Federal Government, not the states, could regulate the interstate rates of railroads. Wabash, St. L. & P. R. Co. v. Illinois, 118 U.S. 557, 7 S.Ct. 4, 30 L.Ed. 244 (1886). The first federal statute dealing with railroad labor relations was the Arbitration Act of 1888;15 the provisions of that Act were invoked by President Cleveland in reaction to the Pullman strike of 1894. Federal mediation of railroad labor disputes was first provided by the Erdman Act of 189816 and strengthened by the Newlands Act of 1913.17 In 1916, Congress mandated the 8-hour day in the railroad industry.18 After federal operation of the railroads during World War I, Congress passed the Transportation Act of 1920,19 which further enhanced federal involvement in railroad labor relations. Finally, in 1926, Congress passed the Railway Labor Act, which was jointly drafted by representatives of the railroads and the railroad unions.20 The Act has been amended a number of times since 1926, but its basic structure has remained intact. The Railway Labor Act thus has provided the framework for collective bargaining between all interstate railroads and their employees for the past 56 years. There is no comparable history of longstanding state regulation of railroad collective bargaining or of other aspects of the railroad industry. 19 Moreover, the Federal Government has determined that a uniform regulatory scheme is necessary to the operation of the national rail system. In particular, Congress long ago concluded that federal regulation of railroad labor relations is necessary to prevent disruptions in vital rail service essential to the national economy. A disruption of service on any portion of the interstate railroad system can cause serious problems throughout the system. Congress determined that the most effective means of preventing such disruptions is by way of requiring and facilitating free collective bargaining between railroads and the labor organizations representing their employees. 20 Rather than absolutely prohibiting strikes, Congress decided to assure equitable settlement of railroad labor disputes, and thus prevent interruption of rail service, by providing mediation and imposing cooling-off periods, thus creating "an almost interminable" collective-bargaining process. Detroit & T. S. L. R. Co. v. Transportation Union, 396 U.S. 142, 149, 90 S.Ct. 294, 298, 24 L.Ed.2d 325 (1969). "[T]he procedures of the Act are purposely long and drawn out, based on the hope that reason and practical considerations will provide in time an agreement that resolves the dispute." Railway & Steamship Clerks v. Florida E. C. R. Co., 384 U.S. 238, 246, 86 S.Ct. 1420, 1424, 16 L.Ed.2d 501 (1966).21 To allow individual states, by acquiring railroads, to circumvent the federal system of railroad bargaining, or any of the other elements of federal regulation of railroads, would destroy the uniformity thought essential by Congress and would endanger the efficient operation of the interstate rail system. 21 In addition, a state acquiring a railroad does so knowing that the railroad is subject to this longstanding and comprehensive scheme of federal regulation of its operations and its labor relations. See California v. Taylor, 353 U.S., at 568, 77 S.Ct., at 1045. Here the State acquired the Railroad with full awareness that it was subject to federal regulation under the Railway Labor Act. At the time of the acquisition, a spokesman stated: 22 "We just have a new owner and a new board of directors. We're under the Railway Labor Act, just as we've always been. The people do not become state employes, they remain railroad employes and retain all the benefits and drawbacks of that." 23 The parties proceeded along those premises for the next 13 years, with both sides making use of the procedures available under the Railway Labor Act, and with Railroad employees covered by the Railroad Retirement Act, the Railroad Unemployment Insurance Act, and the Federal Employers' Liability Act. Conversely, Railroad employees were not eligible for any of the retirement, insurance, or job security benefits of state employees. 24 The State knew of and accepted the federal regulation; moreover, it operated under federal regulation for 13 years without claiming any impairment of its traditional sovereignty. Indeed, the State's initial response to this suit was to acknowledge that the Railway Labor Act applied. It can thus hardly be maintained that application of the Act to the State's operation of the Railroad is likely to impair the State's ability to fulfill its role in the Union or to endanger the "separate and independent existence" referred to in National League of Cities v. Usery, 426 U.S., at 851, 96 S.Ct., at 2474. 25 Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. 26 Reversed and remanded. 1 The Railroad's western terminus is Pennsylvania Station in Manhattan; there it connects with lines of railroads which serve other parts of the country. The eastern terminus is at Montauk Point, at the tip of Long Island, but most of its main and branch line traffic originates in the western half of Long Island, in the boroughs of Brooklyn and Queens, and in the suburbs of Nassau and western Suffolk Counties. By far the bulk of the Railroad's business is carrying commuters between Long Island's suburban communities and their places of employment in New York City. However, the Railroad supplies Long Island's only freight service; it does a significant volume of freight business, with 1979 freight revenue of over $12 million. 2 On January 17, 1980, the Railroad responded to the Union's suit for declaratory judgment by asserting that no justiciable controversy existed because the Railroad did not believe the Taylor Law applied and therefore had no intention to invoke its provisions. 3 The Presidential intervention also triggered the creation of a Presidential Emergency Board to investigate and report on the matter. 4 The Railroad acknowledges in its brief that its freight service, which is admittedly engaged in interstate commerce, "eliminat[es] any dispute regarding its coverage by the RLA." Brief for Respondents 23. In the Court of Appeals, the Railroad maintained that Congress did not intend the Act to apply to state-owned passenger railroads. 634 F.2d, at 23. Whatever merit that claim may have had, it is no longer tenable. After that court rendered its decision, Congress amended the Act to add § 9A, 95 Stat. 681, 45 U.S.C. § 159a (1976 ed., Supp.V). Section 9A establishes special procedures to be applied to any dispute "between a publicly funded and publicly operated carrier providing rail commuter service . . . and its employees." 5 See Texas & N. O. R. Co. v. Railway & Steamship Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034 (1930). 6 The Tenth Amendment 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." 7 The Fair Labor Standards Act is codified at 29 U.S.C. § 201 et seq. 8 88 Stat. 55. The 1974 amendments modified several of the definitions contained in 29 U.S.C. § 203. 9 However, even if these three requirements are met, the federal statute is not automatically unconstitutional under the Tenth Amendment. The federal interest may still be so great as to "justif[y] state submission." 452 U.S., at 288, n. 29, 101 S.Ct., at 2366 n. 29. Cf. Case v. Bowles, 327 U.S. 92, 66 S.Ct. 438, 90 L.Ed. 552 (1946). 10 Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964); California v. Taylor, 353 U.S. 553, 77 S.Ct. 1037, 1 L.Ed.2d 1034 (1957). 11 "[T]here [is] certainly no question that a State's operation of a common carrier, even without profit and as a 'public function,' would be subject to federal regulation under the Commerce Clause. . . . * * * * * "The National League of Cities opinion focused its delineation of the 'attributes of sovereignty' . . . on a determination as to whether the State's interest involved 'functions essential to separate and independent existence.' [426 U.S., at 845, 96 S.Ct., at 2471], quoting Coyle v. Oklahoma, 221 U.S. 559, 580, 31 S.Ct. 688, 695, 55 L.Ed. 853 (1911). It should be evident, I would think, that the running of a business enterprise is not an integral operation in the area of traditional government functions. . . . Indeed, the reaffirmance of the holding in United States v. California, supra, by National League of Cities, supra, at 854, n.18, 96 S.Ct. at 2475 n.18, strongly supports this understanding." 435 U.S., at 422-424, 98 S.Ct., at 1141-1142 (BURGER, C.J., concurring in part and in judgment). 12 At the time of this suit, there were 17 commuter railroads in the United States; only 2 of those railroads were publicly owned and operated, both by the Metropolitan Transportation Authority. American Public Transit Assn., Transit Fact Book 74-75 (1979). Those two public railroads—the Long Island and the Staten Island—were originally private railroads. The Staten Island was founded in 1899 and acquired by the Metropolitan Transportation Authority in 1971. Moody's Transportation Manual 97 (1979). 13 The initial exercise of the federal authority over railroads occurred before the completion of the first transcontinental railroad. See the Pacific Railroad Act of 1862. 12 Stat. 489. Of course, federal regulation of interstate transportation goes back many more years than that. See the 1793 Act regulating coastal trade discussed in Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23 (1824). 14 24 Stat. 379. 15 Ch. 1063, 25 Stat. 501. 16 30 Stat. 424. 17 Ch. 6, 38 Stat. 103. 18 Adamson Act of 1916, ch. 436, 39 Stat. 721. 19 41 Stat. 456. 20 Railway Labor Act of 1926, 44 Stat. (part 2) 577, as amended, 45 U.S.C. § 151 et seq. The purposes of the Railway Labor Act are set out in § 2 of the Act, 45 U.S.C. § 151a: "The purposes of the chapter are: (1) To avoid any interruption to commerce or to the operation of any carrier engaged therein; (2) to forbid any limitation upon freedom of association among employees or any denial, as a condition of employment or otherwise, of the right of employees to join a labor organization; (3) to provide for the complete independence of carriers and of employees in the matter of self-organization to carry out the purposes of this chapter; (4) to provide for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions; (5) to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions." 21 Under the recent amendments to the Act, adding a new § 9A, 95 Stat. 681, 45 U.S.C. § 159a (1976 ed., Supp.V), the process has been made even more "long and drawn out" insofar as it applies to publicly owned commuter rail lines such as the Long Island. The law now provides for a "cooling-off period" of up to 240 days after failure of mediation. Any party to the dispute, or the Governor of any state through which the rail service operates, may request appointment of a Presidential Emergency Board to investigate and report on the dispute. If the dispute is not settled within 60 days after creation of the Emergency Board, the National Mediation Board must hold a public hearing at which each party must appear and explain any refusal to accept the Emergency Board's recommendations. The law then requires appointment of a second Emergency Board at the request of any party or Governor of an affected state. That Emergency Board must examine the final offers submitted by each party and must determine which is the most reasonable. Finally, if a work stoppage occurs, substantial penalties are provided against the party refusing to accept the offer determined by the Emergency Board to be most reasonable.

67

456 U.S. 25 102 S.Ct. 1510 71 L.Ed.2d 715 Caspar W. WEINBERGER, Secretary of Defense, et al., Petitionersv.Anthony M. ROSSI et al. No. 80-1924. Argued Feb. 22, 1982. Decided March 31, 1982. Syllabus In 1968, the President entered into an agreement with the Republic of the Philippines providing for the preferential employment of Filipino citizens at United States military bases in the Philippines. In 1971, Congress enacted § 106 of Pub.L. 92-129, which prohibits employment discrimination against United States citizens on military bases overseas unless permitted by "treaty." Thereafter, respondent United States citizens residing in the Philippines were notified that their jobs at a naval base there were being converted into local national positions in accordance with the 1968 agreement. After unsuccessfully pursuing an administrative remedy, respondents then filed suit in Federal District Court, alleging that the preferential employment provisions of the agreement violated § 106. The District Court granted summary judgment for petitioners, but the Court of Appeals reversed. Held: The word "treaty" as used in § 106 includes executive agreements, such as the one involved here, and is not limited to those international agreements concluded by the President with the advice and consent of the Senate pursuant to Art. II, § 2, cl. 2, of the Constitution. Pp. 28-36. (a) In view of the fact that Congress has not been consistent in various other Acts in distinguishing between Art. II treaties and other forms of international agreements, it is not dispositive that Congress in § 106 used the term "treaty" without specifically including international agreements that are not Art. II treaties. But in the case of a statute such as § 106 that touches upon the United States' foreign policy, there is a particularly justifiable reason to construe Congress' use of "treaty" to include international agreements as well as Art. II treaties. Cf. B. Altman & Co. v. United States, 224 U.S. 583, 32 S.Ct. 593, 56 L.Ed. 894. To construe § 106 otherwise would mean that Congress intended to repudiate 13 existing executive agreements, including the one in this case, providing for preferential hiring of local nationals. Pp. 28-32. (b) The legislative history of § 106 provides no support for attributing such an intent to Congress, but rather discloses that Congress was primarily concerned with the financial hardship to American servicemen that resulted from employment discrimination against American citizens at overseas bases. Pp. 32-36. 206 U.S.App.D.C. 148, 642 F.2d 553, reversed and remanded. Barbara E. Etkind, Philadelphia, Pa., for petitioners. M. Mott, Washington, D. C., for respondents. Justice REHNQUIST delivered the opinion of the Court. 1 Section 106 of Pub.L. 92-129, 85 Stat. 355, note following 5 U.S.C. § 7201 (1976 ed., Supp.IV), prohibits employment discrimination against United States citizens on military bases overseas unless permitted by "treaty." The question in this case is whether "treaty" includes executive agreements concluded by the President with the host country, or whether the term is limited to those international agreements entered into by the President with the advice and consent of the Senate pursuant to Art. II, § 2, cl. 2, of the United States Constitution. This issue is solely one of statutory interpretation. 2 * In 1944, Congress authorized the President, "by such means as he finds appropriate," to acquire, after negotiation with the President of the Philippines, military bases "he may deem necessary for the mutual protection of the Philippine Islands and of the United States." 58 Stat. 626, 22 U.S.C. § 1392. Pursuant to this statute, the United States and the Republic of the Philippines in 1947 entered into a 99-year Military Bases Agreement (MBA), Mar. 14, 1947, 61 Stat. 4019, T.I.A.S. No. 1775.1 The MBA grants the United States the use of various military facilities in the Philippines. It does not, however, contain any provisions regarding the employment of local nationals on the base. In 1968, the two nations negotiated a Base Labor Agreement (BLA), May 27, 1968, [1968] 19 U.S.T. 5892, T.I.A.S. No. 6542, as a supplement to the MBA. The BLA, inter alia, provides for the preferential employment of Filipino citizens at United States military facilities in the Philippines.2 3 In 1971, Congress enacted § 106 of Pub.L. 92-129, the employment discrimination statute at issue in this case.3 At the time § 106 was enacted, 12 agreements in addition to the BLA were in effect providing for preferential hiring of local nationals on United States military bases overseas. Since § 106 was enacted, four more such agreements have been concluded.4 None of these agreements were submitted to the Senate for its advice and consent pursuant to Art. II, § 2, cl. 2, of the Constitution. 4 In 1978, respondents, all United States citizens residing in the Philippines, were notified that their jobs at the United States Naval Facility at Subic Bay were being converted into local national positions in accordance with the BLA, and that they would be discharged from their employment with the Navy. After unsuccessfully pursuing an administrative remedy, respondents filed suit in the United States District Court for the District of Columbia, alleging that the preferential employment provisions of the BLA violated, inter alia, § 106. The District Court granted summary judgment for petitioners, Rossi v. Brown, 467 F.Supp. 960 (1979), but the Court of Appeals reversed. Rossi v. Brown, 206 U.S.App.D.C. 148, 642 F.2d 553 (1980). We in turn reverse the Court of Appeals. II 5 Simply because the question presented is entirely one of statutory construction does not mean that the question necessarily admits of an easy answer. Chief Justice Marshall long ago observed that "[w]here the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived. . . ." United States v. Fisher, 2 Cranch 358, 386, 2 L.Ed. 304 (1805). More recently, the Court has stated: 6 "Generalities about statutory construction help us little. They are not rules of law but merely axioms of experience. They do not solve the special difficulties in construing a particular statute. The variables render every problem of statutory construction unique." United States v. Universal Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952) (citations omitted). 7 We naturally begin with the language of § 106, which provides in relevant part as follows: 8 "Unless prohibited by treaty, no person shall be discriminated against by the Department of Defense or by any officer or employee thereof, in the employment of civilian personnel at any facility or installation operated by the Department of Defense in any foreign country because such person is a citizen of the United States or is a dependent of a member of the Armed Forces of the United States." 85 Stat. 355, note following 5 U.S.C. § 7201 (1976 ed., Supp.IV) (emphasis added). 9 The statute is awkwardly worded in the form of a double negative, and we agree with the Court of Appeals that "[r]eplacing the phrase '[u]nless prohibited by' with either the words 'unless permitted by' or 'unless provided by' would convey more precisely the meaning of the statute, but we do not think that this awkward phrasing bears on congressional intent in selecting the word 'treaty.' " 206 U.S.App.D.C., at 153, n. 21, 642 F.2d, at 558, n. 21. Discrimination in employment against United States citizens at military facilities overseas is prohibited by § 106, unless such discrimination is permitted by a "treaty" between the United States and the host country. Our task is to determine the meaning of the word "treaty" as Congress used it in this statute. Congress did not separately define the word, as it has done in other enactments. Infra, at 30. We must therefore ascertain as best we can whether Congress intended the word "treaty" to refer solely to Art. II, § 2, cl. 2, "Treaties"—those international agreements concluded by the President with the advice and consent of the Senate—or whether Congress intended "treaty" to also include executive agreements such as the BLA. 10 The word "treaty" has more than one meaning. Under principles of international law, the word ordinarily refers to an international agreement concluded between sovereigns, regardless of the manner in which the agreement is brought into force. 206 U.S.App.D.C., at 151, 642 F.2d, at 556.5 Under the United States Constitution, of course, the word "treaty" has a far more restrictive meaning. Article II, § 2, cl. 2, of that instrument provides that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur."6 11 Congress has not been consistent in distinguishing between Art. II treaties and other forms of international agreements. For example, in the Case Act, 1 U.S.C. § 112b(a) (1976 ed., Supp.IV), Congress required the Secretary of State to "transmit to the Congress the text of any international agreement, . . . other than a treaty, to which the United States is a party" no later than 60 days after "such agreement has entered into force."7 Similarly, Congress has explicitly referred to Art. II treaties in the Fishery Conservation and Management Act of 1976, 16 U.S.C. § 1801 et seq. (1976 ed. and Supp.IV),8 and the Arms Control and Disarmament Act, 22 U.S.C. § 2551 et seq. (1976 ed. and Supp.IV).9 On the other hand, Congress has used "treaty" to refer only to international agreements other than Art. II treaties. In 39 U.S.C. § 407(a), for example, Congress authorized the Postal Service, with the consent of the President, to "negotiate and conclude postal treaties or conventions." A "treaty" which requires only the consent of the President is not an Art. II treaty. Thus it is not dispositive that Congress in § 106 used the term "treaty" without specifically including international agreements that are not Art. II treaties. 12 The fact that Congress has imparted no precise meaning to the word "treaty" as that term is used in its various legislative Acts was recognized by this Court in B. Altman & Co. v. United States, 224 U.S. 583, 32 S.Ct. 593, 56 L.Ed. 894 (1912). There this Court construed "treaty" in § 5 of the Circuit Court of Appeals Act of 1891, ch. 517, 26 Stat. 826, to include international agreements concluded by the President under congressional authorization. 224 U.S., at 601, 32 S.Ct., at 597. The Court held that the word "treaty" in the jurisdictional statute extended to such an agreement, saying: "If not technically a treaty requiring ratification, nevertheless it was a compact authorized by the Congress of the United States, negotiated and proclaimed under the authority of its President. We think such a compact is a treaty under the Circuit Court of Appeals Act. . . ." Ibid. 13 The statute involved in the Altman case in no way affected the foreign policy of the United States, since it dealt only with the jurisdiction of this Court. In the case of a statute such as § 106, that does touch upon the United States' foreign policy, there is even more reason to construe Congress' use of "treaty" to include international agreements as well as Art. II treaties. At the time § 106 was enacted, 13 executive agreements provided for preferential hiring of local nationals. Supra, at 27. Thus, if Congress intended to limit the "treaty exception" in § 106 to Art. II treaties, it must have intended to repudiate these executive agreements that affect the hiring practices of the United States only at its military bases overseas. One would expect that Congress would be aware that executive agreements may represent a quid pro quo : the host country grants the United States base rights in exchange, inter alia, for preferential hiring of local nationals. See n. 17, infra. 14 It has been a maxim of statutory construction since the decision in Murray v. The Charming Betsy, 2 Cranch 64, 118, 2 L.Ed. 208 (1804), that "an act of congress ought never to be construed to violate the law of nations, if any other possible construction remains. . . ." In McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 20-21, 83 S.Ct. 671, 677-678, 9 L.Ed.2d 547 (1963), this principle was applied to avoid construing the National Labor Relations Act in a manner contrary to State Department regulations, for such a construction would have had foreign policy implications. The McCulloch Court also relied on the fact that the proposed construction would have been contrary to a "well-established rule of international law." Id., at 21, 83 S.Ct., at 677-678. While these considerations apply with less force to a statute which by its terms is designed to affect conditions on United States enclaves outside of the territorial limits of this country than they do to the construction of statutes couched in general language which are sought to be applied in an extraterritorial way, they are nonetheless not without force in either case. 15 At the time § 106 was enacted, there were in force 12 agreements in addition to the BLA providing for preferential hiring of local nationals on United States military bases overseas. Since the time of the enactment of § 106, four more such agreements have been concluded, and none of these were submitted to the Senate for its advice and consent. Supra, at 27. We think that some affirmative expression of congressional intent to abrogate the United States' international obligations is required in order to construe the word "treaty" in § 106 as meaning only Art. II treaties. We therefore turn to what legislative history is available in order to ascertain whether such an intent may fairly be attributed to Congress. 16 The legislative history seems to us to indicate that Congress was principally concerned with the financial hardship to American servicemen which resulted from discrimination against American citizens at overseas bases. As the Conference Committee Report explains: 17 "The purpose of [§ 106] is to correct a situation which exists at some foreign bases, primarily in Europe, where discrimination in favor of local nationals and against American dependents in employment has contributed to conditions of hardship for families of American enlisted men whose dependents are effectively prevented from obtaining employment." H.R.Conf.Rep.No. 92-433, p. 31 (1971). 18 The Conference Report, however, is entirely silent as to the scope of the "treaty" exception. Similarly, there is no mention of the 13 agreements that provided for preferential hiring of local nationals. Thus, the Conference Report provides no support whatsoever for the conclusion that Congress intended in some way to limit the President's use of international agreements that may discriminate against American citizens who seek employment at United States military bases overseas. 19 On the contrary, the brief congressional debates on this provision indicate that Congress was not concerned with limiting the authority of the President to enter into executive agreements with the host country, but with the ad hoc decisionmaking of military commanders overseas. In early 1971, Brig. Gen. Charles H. Phipps, Commanding General of the European Exchange System, issued a memorandum encouraging the recruitment and hiring of local nationals instead of United States citizens at the system's stores. The hiring of local nationals, General Phipps reasoned, would result in lower wage costs and turnover rates.10 Senator Schweiker, a sponsor of § 106, complained of General Phipps' policy.11 20 Both the Conference Report and the debates12 indicate that Congress was concerned primarily about the economic hardships American servicemen endured in Europe, particularly Germany. In this regard, it must be noted that of the 13 executive agreements in existence at the time § 106 was enacted, only one involved an agreement with a European country—Iceland.13 The Agreement Between the Parties to the North Atlantic Treaty Organization Regarding the Status of Their Forces, June 19, 1951, [1953] 4 U.S.T. 1792, T.I.A.S. No. 2846,14 merely provides that local law governs the terms and conditions of the employment of local nationals. It does not provide for preferential treatment for local nationals. Thus, those servicemen whose interests Congress expressly sought to further in § 106 were not subject to the type of agreement at issue in this case. 21 The Court of Appeals relied heavily on a statement by Senator Hughes, a sponsor of § 106, that dependents of enlisted personnel "are denied the opportunity to work on overseas bases, by agreement with the countries in which they are located, and are forced to live in poverty." 117 Cong.Rec. 16126 (1971). Taken out of context, this remark is certainly supportive of respondents' position. In context, however, it is not altogether clear to which "agreements" Senator Hughes was referring. Immediately prior to this remark, Senator Cook explained that dependents of American servicemen were unable to obtain anything but tourist visas, thus precluding them from working in the local economy: 22 "On my inquiry of the Defense Department, it was my understanding that there was an agreement, through the NATO organization, that those young wives, because they were there on tourists visas, could not get a work permit under any circumstances." Ibid. 23 As we indicated above, the NATO agreements do not contain any provision for preferential hiring of local nationals. Supra, at 34. Senator Hughes could well have been referring to agreements that in effect precluded dependents from working in the local economy. Be that as it may, it suffices to say that one isolated remark by a single Senator, ambiguous in meaning when examined in context, is insufficient to establish the kind of affirmative congressional expression necessary to evidence an intent to abrogate provisions in 13 international agreements.15 24 Finally, respondents rely on postenactment legislative history that "firmly reiterate[s] the Congressional policy against preferential hiring of local nationals." Brief for Respondents 23. In particular, respondents offer two examples of congressional Committees urging the Department of Defense to renegotiate those agreements containing local-national preferential hiring provisions.16 Such post hoc statements of a congressional Committee are not entitled to much weight. Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 118, and n. 13, 100 S.Ct. 2051, 2061, and n. 13, 64 L.Ed.2d 766 (1980). If anything, these postenactment statements cut against respondents' argument that Congress sought in § 106 to eliminate discrimination owing to executive agreements. By urging the Department of Defense to renegotiate these agreements, the Committees assume the validity of those very international agreements respondents contend were abrogated by Congress in § 106.17 25 While the question is not free from doubt, we conclude that the "treaty" exception contained in § 106 extends to executive agreements as well as to Art. II treaties. The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.18 26 It is so ordered. 1 This agreement has been amended periodically, most recently on January 7, 1979. [1978-1979] 30 U.S.T. 863, T.I.A.S. No. 9224. 2 In relevant part, Article I of the BLA provides: "1. Preferential Employment.—The United States Armed Forces in the Philippines shall fill the needs for civilian employment by employing Filipino citizens, except when the needed skills are found, in consultation with the Philippine Department of Labor, not to be locally available, or when otherwise necessary for reasons of security or special management needs, in which cases United States nationals may be employed. . . ." 3 Section 106 provides in pertinent part: "Unless prohibited by treaty, no person shall be discriminated against by the Department of Defense or by any officer or employee thereof, in the employment of civilian personnel at any facility or installation operated by the Department of Defense in any foreign country because such person is a citizen of the United States or is a dependent of a member of the Armed Forces of the United States." 85 Stat. 355, note following 5 U.S.C. § 7201 (1976 ed., Supp.IV) (emphasis added). 4 Brief for Petitioners 5-6, and nn. 3-4. 5 See Vienna Convention on the Law of Treaties, May 23, 1969, Art. 2, ¶ 1(a), reprinted in 63 Am.J.Int'l L. 875, 876 (1969); Restatement of Foreign Relations of the United States, Introductory Note 3, p. 74 (Tent. Draft No. 1, Apr. 1, 1980) ("[I]nternational law does not distinguish between agreements designated as 'treaties' and other agreements"). 6 We have recognized, however, that the President may enter into certain binding agreements with foreign nations without complying with the formalities required by the Treaty Clause of the Constitution, even when the agreement compromises commercial claims between United States citizens and a foreign power. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981); United States v. Pink, 315 U.S. 203, 62 S.Ct. 552, 86 L.Ed. 796 (1942); United States v. Belmont, 301 U.S. 324, 57 S.Ct. 758, 81 L.Ed. 1134 (1937). Even though such agreements are not treaties under the Treaty Clause of the Constitution, they may in appropriate circumstances have an effect similar to treaties in some areas of domestic law. 7 In this context, it is entirely logical that Congress should distinguish between Art. II treaties and other international agreements. Submission of Art. II treaties to the Senate for ratification is already required by the Constitution. 8 Congress defined "treaty" to mean "any international fishery agreement which is a treaty within the meaning of section 2 of article II of the Constitution." 16 U.S.C. § 1802(23). 9 "[N]o action shall be taken under this chapter or any other law that will obligate the United States to disarm or to reduce or to limit the Armed Forces or armaments of the United States, except pursuant to the treaty making power of the President under the Constitution or unless authorized by further affirmative legislation by the Congress of the United States." 22 U.S.C. § 2573. 10 See 117 Cong.Rec. 14395 (1971) (remarks of Sen. Schweiker). 11 "I have never heard of anything so ridiculous in my life. We actually send our GI's to Europe at poverty wages. We do not pay to send the wives there. They have to beg or borrow that money. They get over there, and if they do bring their wives at their own expense, the wives cannot even go to the Army Exchange Service and get a job, because a general has sent out a memorandum that says we are going to give those jobs to the nationals of the countries involved." Ibid. At another point, Senator Schweiker commented: "Here is an American general saying that when the GI's go to their canteen or service post exchange and spend their money, they do not even have the right to have their wives working there because we should give those jobs to German nationals." Id., at 16128. 12 See, e.g., id., at 14395 (remarks of Sen. Schweiker); id., at 16126 (remarks of Sen. Cook); ibid. (remarks of Sen. Hughes). 13 Agreement Concerning the Status of United States Personnel and Property (Annex), May 8, 1951, United States-Iceland, [1951] 2 U.S.T. 1533, T.I.A.S. No. 2295. 14 This NATO agreement is an Art. II treaty. 15 The contemporaneous remarks of a sponsor of legislation are certainly not controlling in analyzing legislative history. Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 118, 100 S.Ct. 2051, 2061, 64 L.Ed.2d 766 (1980); Chrysler Corp. v. Brown, 441 U.S. 281, 311, 99 S.Ct. 1705, 1722, 60 L.Ed.2d 208 (1979). 16 See H.R.Rep.No. 95-68, p. 25 (1977); H.R.Conf.Rep.No. 97-410, p. 54 (1981). 17 Although we do not ascribe it much weight, we note that a Conference Committee recently deleted a provision that would have prohibited the hiring of foreign nationals at military bases overseas when qualified United States citizens are available. Ibid. In urging this provision's deletion, Senator Percy explained that the provision would place the United States in violation of its obligations, inter alia, under the BLA with the Philippines. 127 Cong.Rec. S14110 (Nov. 30, 1981). He argued: "Some host nations might view enactment of 777 as a material breach of our agreements, thus entitling them to open negotiations on terminating, redefining or further restricting U. S. basing and use rights. Nations could, for example, retaliate by suspending or reducing our current rights to engage in routine military operations such as aircraft transits." Ibid. 18 In view of its construction of § 106, the Court of Appeals found it unnecessary to determine whether the BLA in the instant case violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1976 ed. and Supp.IV). Rossi v. Brown, 206 U.S.App.D.C. 148, 156, n. 36, 642 F.2d 553, 561 n. 36 (1980). Because this question was neither raised in the petition for certiorari nor reached by the Court of Appeals, we do not consider it.

12

456 U.S. 1 102 S.Ct. 1497 71 L.Ed.2d 696 UNITED STATES, Petitionerv.Jeffrey R. MacDONALD. No. 80-1582. Argued Dec. 7, 1981. Decided March 31, 1982. Syllabus In May 1970, the Army formally charged respondent, a captain in the Army Medical Corps, with the murders earlier that year of his pregnant wife and two children on a military reservation. Later that year, the military charges were dismissed and the respondent was honorably discharged on the basis of hardship, but at the Justice Department's request the Army Criminal Investigation Division (CID) continued its investigation of the homicides. In June 1972, the CID forwarded a report recommending further investigation, and the Justice Department, in 1974, ultimately presented the matter to a grand jury, which returned an indictment in January 1975, charging respondent with the three murders. On an interlocutory appeal from the District Court's denial of respondent's motion to dismiss the indictment, the Court of Appeals reversed, holding that the delay between the June 1972 submission of the CID report to the Justice Department and the 1974 convening of the grand jury violated respondent's Sixth Amendment right to a speedy trial. After this Court's decision that respondent could not appeal the denial of his motion to dismiss on speedy trial grounds until after completion of the trial, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18, respondent was tried and convicted. The Court of Appeals again held that the indictment violated respondent's right to a speedy trial and dismissed the indictment. Held: The time between dismissal of the military charges and the subsequent indictment on civilian charges may not be considered in determining whether the delay in bringing respondent to trial violated his right to a speedy trial under the Sixth Amendment. Pp. 6-10. (a) The Speedy Trial Clause of the Sixth Amendment does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused. Although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment or to a claim under any applicable statute of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending. Similarly, any undue delay after the Government, acting in good faith, formally dismisses charges must be scrutinized under the Due Process Clause, not the Speedy Trial Clause. Once charges are dismissed, the speedy trial guarantee which is designed primarily to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges—is no longer applicable. Following dismissal of charges, any restraint on liberty, disruption of employment, strain on financial resources, and exposure to public obloquy, stress and anxiety is no greater than it is upon anyone openly subject to a criminal investigation. Pp. 6-9. (b) The Court of Appeals erred in holding, in essence, that criminal charges were pending against respondent during the entire period between his military arrest and his later indictment on civilian charges. Although respondent was subjected to stress and other adverse consequences flowing from the initial military charges and the continuing investigation after they were dismissed, he was not under arrest, not in custody, and not subject to any "criminal prosecution" until the civilian indictment was returned. He was legally and constitutionally in the same posture as though no charges had been made; he was free to go about his affairs, to practice his profession, and to continue with his life. Pp. 9-10. 632 F.2d 258 and 635 F.2d 1115, reversed and remanded. Alan I. Horowitz, Washington, D.C., for petitioner. Ralph S. Spritzer, Philadelphia, Pa., for respondent. Chief Justice BURGER delivered the opinion of the Court. 1 We granted certiorari to decide whether the time between dismissal of military charges and a subsequent indictment on civilian criminal charges should be considered in determining whether the delay in bringing respondent to trial for the murder of his wife and two children violated his rights under the Speedy Trial Clause of the Sixth Amendment. 2 * The facts in this case are not in issue; a jury heard and saw all the witnesses and saw the tangible evidence. The only point raised here by petitioner involves a legal issue under the Speedy Trial Clause of the Sixth Amendment. Accordingly, only a brief summary of the facts is called for. In the early morning of February 17, 1970, respondent's pregnant wife and his two daughters, aged 2 and 5, were brutally murdered in their home on the Fort Bragg, N.C., military reservation. At the time, MacDonald, a physician, was a captain in the Army Medical Corps stationed at Fort Bragg. When the military police arrived at the scene following a call from MacDonald, they found the three victims dead and MacDonald unconscious from multiple stab wounds, most of them superficial, but one a life-threatening chest wound which caused a lung to collapse. 3 At the time and in subsequent interviews, MacDonald told of a bizarre and ritualistic murder. He stated that he was asleep on the couch when he was awakened by his wife's screams. He said he saw a woman with blond hair wearing a floppy hat, white boots, and a short skirt carrying a lighted candle and chanting "acid is groovy; kill the pigs."1 He claimed that three men standing near the couch attacked him, tearing his pajama top, stabbing him, and clubbing him into unconsciousness. When he awoke, he found his wife and two daughters dead. After trying to revive them and covering his wife's body with his pajama top, MacDonald called the military police. He lost consciousness again before the police arrived. 4 Physical evidence at the scene contradicted MacDonald's account and gave rise to the suspicion that MacDonald himself may have committed the crime.2 On April 6, 1970, the Army Criminal Investigation Division (CID) advised MacDonald that he was a suspect in the case and confined him to quarters. The Army formally charged MacDonald with the three murders on May 1, 1970. In accordance with Article 32 of the Uniform Code of Military Justice, 10 U.S.C. § 832, the Commanding General of MacDonald's unit appointed an officer to investigate the charges. After hearing a total of 56 witnesses, the investigating officer submitted a report recommending that the charges and specifications against MacDonald be dismissed. The Commanding General dismissed the military charges on October 23, 1970. On December 5, 1970, the Army granted MacDonald's request for an honorable discharge based on hardship.3 5 At the request of the Justice Department, however, the CID continued its investigation. In June 1972, the CID forwarded a 13-volume report to the Justice Department recommending further investigation. Additional reports were submitted during November 1972 and August 1973. Following evaluation of those reports, in August 1974, the Justice Department presented the matter to a grand jury. On January 24, 1975, the grand jury returned an indictment charging MacDonald with the three murders. 6 Prior to his trial in Federal District Court,4 MacDonald moved to dismiss the indictment, in part on the grounds that the delay in bringing him to trial violated his Sixth Amendment right to a speedy trial. The District Court denied the motion, but the Court of Appeals allowed an interlocutory appeal and reversed, holding that the delay between the June 1972 submission of the CID report to the Justice Department and the August 1974 convening of the grand jury violated MacDonald's constitutional right to a speedy trial. MacDonald v. United States, 531 F.2d 196 (CA4 1976). We granted certiorari and reversed, holding that a criminal defendant could not appeal the denial of a motion to dismiss on Speedy Trial Clause grounds until after the trial had been completed. United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978). 7 MacDonald was then tried and convicted on two counts of second-degree murder and one count of first-degree murder. He was sentenced to three consecutive terms of life imprisonment. On appeal, a divided panel of the Fourth Circuit again held that the indictment violated MacDonald's Sixth Amendment right to a speedy trial and dismissed the indictment. 632 F.2d 258 (1980).5 The court denied rehearing en banc by an evenly divided vote. 635 F.2d 1115 (1980). 8 We granted certiorari, 451 U.S. 1016, 101 S.Ct. 3004, 69 L.Ed.2d 387 (1981), and we reverse.6 II 9 The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . . ." A literal reading of the Amendment suggests that this right attaches only when a formal criminal charge is instituted and a criminal prosecution begins. 10 In United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971), we held that the Speedy Trial Clause of the Sixth Amendment does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused: 11 "On its face, the protection of the Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been 'accused' in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time. The Amendment would appear to guarantee to a criminal defendant that the Government will move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him." 12 In addition to the period after indictment, the period between arrest and indictment must be considered in evaluating a Speedy Trial Clause claim. Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975). Although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, see United States v. Lovasco, 431 U.S. 783, 788-789, 97 S.Ct. 2044, 2047-48, 52 L.Ed.2d 752 (1977), or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending. 13 Similarly, the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges. Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause.7 14 The Court identified the interests served by the Speedy Trial Clause in United States v. Marion, supra, at 320, 92 S.Ct., at 463: 15 "Inordinate delay between arrest, indictment, and trial may impair a defendant's ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused's defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends." 16 See also Barker v. Wingo, 407 U.S. 514, 532-533, 92 S.Ct. 2182, 2192-2193, 33 L.Ed.2d 101 (1972). 17 The Sixth Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. 18 Once charges are dismissed, the speedy trial guarantee is no longer applicable.8 At that point, the formerly accused is, at most, in the same position as any other subject of a criminal investigation. Certainly the knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life. This is true whether or not charges have been filed and then dismissed. This was true in Marion, where the defendants had been subjected to a lengthy investigation which received considerable press attention.9 But with no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending. After the charges against him have been dismissed, "a citizen suffers no restraints on his liberty and is [no longer] the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer." United States v. Marion, 404 U.S., at 321, 92 S.Ct., at 463. Following dismissal of charges, any restraint on liberty, disruption of employment, strain on financial resources, and exposure to public obloquy, stress and anxiety is no greater than it is upon anyone openly subject to a criminal investigation. III 19 The Court of Appeals held, in essence, that criminal charges were pending against MacDonald during the entire period between his military arrest and his later indictment on civilian charges.10 We disagree. In this case, the homicide charges initiated by the Army were terminated less than a year after the crimes were committed; after that, there was no criminal prosecution pending on which MacDonald could have been tried until the grand jury, in January 1975, returned the indictment on which he was tried and convicted.11 During the intervening period, MacDonald was not under arrest, not in custody, and not subject to any "criminal prosecution." Inevitably, there were undesirable consequences flowing from the initial accusation by the Army and the continuing investigation after the Army charges were dismissed. Indeed, even had there been no charges lodged by the Army, the ongoing comprehensive investigation would have subjected MacDonald to stress and other adverse consequences. However, once the charges instituted by the Army were dismissed, MacDonald was legally and constitutionally in the same posture as though no charges had been made.12 He was free to go about his affairs, to practice his profession, and to continue with his life. 20 The Court of Appeals acknowledged, and MacDonald concedes, that the delay between the civilian indictment and trial was caused primarily by MacDonald's own legal manuevers and, in any event, was not sufficient to violate the Speedy Trial Clause. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. 21 Reversed and remanded. 22 Justice STEVENS, concurring in the judgment. 23 For the reasons stated by Justice MARSHALL in Part II of his opinion, I also conclude that MacDonald's constitutional right to a speedy trial was not suspended during the period between the Army's dismissal of its charges in 1970 and the return of the civilian indictment in 1975. Justice MARSHALL also is clearly correct in stating that the question whether the delay was constitutionally unacceptable is "close." Post, at 21. Since his opinion fairly identifies the countervailing factors, I need only state that the interest in allowing the Government to proceed cautiously and deliberately before making a final decision to prosecute for such a serious offense is of decisive importance for me in this case. I therefore concur in the Court's judgment. 24 Justice MARSHALL, with whom Justice BRENNAN and Justice BLACKMUN join, dissenting. 25 On February 17, 1970, in the early morning, Dr. Jeffrey R. MacDonald called military police and requested help. When police arrived at the family quarters, they found him unconscious and suffering from multiple stab wounds, including one that threatened his life. His wife and two young children had been murdered. On May 1, 1970, the Army formally charged him with the murders. The Army dropped those charges on October 23, 1970, but reopened the investigation at the request of the Justice Department and handed over a comprehensive report in June 1972. The Justice Department did not convene a grand jury until August 1974, more than two years later. The Court of Appeals charged this delay to Government "indifference, negligence, or ineptitude." United States v. MacDonald, 531 F.2d 196, 207 (CA4 1976) (MacDonald I ). On January 24, 1975, MacDonald was indicted by a civilian grand jury on three counts of murder, the same charges that the military authorities had dropped. Trial commenced in the summer of 1979. 26 Confronted with these facts, the majority reaches the facile conclusion that the speedy trial right is not implicated at all when the same sovereign initiates, drops, and then reinitiates criminal charges. That conclusion is not justified by the language of the Speedy Trial Clause or the teachings of our cases, and it is hopelessly at odds with any sensible understanding of speedy trial policies. I must dissent. 27 * Because the majority scants the relevant facts in this case, I review them in somewhat more detail. The initial investigation of the murders in this case was conducted by the Army's Criminal Investigation Division (CID) and the Federal Bureau of Investigation, as well as the local police. On May 1, 1970, the Army formally charged MacDonald with three specifications of murder, in violation of Article 118 of the Uniform Code of Military Justice, 10 U.S.C. § 918. The Army conducted a lengthy hearing during which 56 witnesses testified. MacDonald himself testified and was extensively cross-examined. At the conclusion of the hearing, the investigating officer filed an exhaustive report recommending that the charges against MacDonald be dismissed "because the matters set forth in all charges and specifications are not true." See MacDonald I, supra, at 200. He also recommended that the civilian authorities investigate Helena Stoeckley, who had told several persons that she was involved in the crime. On October 23, 1970, the Commanding General of MacDonald's unit accepted the recommendation and dismissed the charges. In December, MacDonald received an honorable discharge. 28 The prosecution did not, however, terminate on that date. Within a month of MacDonald's discharge, at the specific request of the Justice Department, the CID continued its investigation. The renewed investigation was extensive and wide-ranging. The CID conducted 699 interviews and, at the request of the Department, sent the weapons and the victims' clothing to the FBI laboratory in July 1971. In December 1971, the CID completed its investigation, and in June 1972, the CID submitted a 13-volume report to the Justice Department. Although supplemental reports were transmitted in November 1972 and August 1973, the Court of Appeals found that "no significant new investigation was undertaken during this period, and none was pursued from August 1973 until the grand jury was convened a year later." MacDonald I, supra, at 206. Indeed, the United States Attorney for the Eastern District of North Carolina recommended that the matter be submitted to a grand jury within six months of June 1972, and in 1973, the CID suggested the convening of a grand jury before it conducted further investigation. 29 MacDonald was fully aware of these investigations. After his honorable discharge, MacDonald moved to California and resumed the practice of medicine. In 1971, the CID again interviewed him. From January 1972 to January 1974, he repeatedly requested the Government to complete its investigation, and offered to submit to further interviews. The Justice Department declined to question him or to advise him when the investigation would terminate. In January 1974, the Department wrote that "this case is under active investigation and will remain under consideration for the foreseeable future." MacDonald I, supra, at 201 n. 6. There was no further correspondence. 30 The Government did not present the case to a civilian grand jury until August 1974. MacDonald waived his right to remain silent and testified before the grand jury for a total of more than five days. Numerous other witnesses testified, the bodies of the victims were exhumed, and the FBI reinvestigated certain aspects of the crime. An indictment was returned on January 24, 1975. The indictment charged MacDonald with three counts of first-degree murder. 31 The Government offered no legitimate reason—not even docket congestion—for the delay between the submission of the June 1972 report and the presentation to the grand jury in August 1974. The Court of Appeals explained: 32 "The leisurely pace from June 1972 until the indictment was returned in January 1975 appears to have been primarily for the government's convenience. The Assistant United States Attorney for the Eastern District of North Carolina, who is familiar with the case, expressed an even harsher assessment of the delay. He told the magistrate at the bail hearing that the tangible evidence had been known to the government since the initial investigation in 1970 but that it had not been fully analyzed by the F.B.I. until the latter part of 1974. He explained that the F.B.I. analysis was tardy 'because of government bureaucracy.' " MacDonald I, supra, at 206 (footnotes omitted). 33 The FBI's failure to complete its analysis until 1974 is the only Government justification for the delay that the District Court mentioned in its initial decision denying MacDonald's motion to dismiss on speedy trial grounds. 1 App. for Appellant in No. 79-5253 (CA4), p. 46. In its post-trial decision, the District Court again denied the motion, but stated its belief that "the case could have been put before the grand jury at a much earlier date than it was." 485 F.Supp. 1087, 1089 (EDNC 1979). II 34 The majority's analysis is simple: the Speedy Trial Clause offers absolutely no protection to a criminal defendant during the period that a charge is not technically pending. But simplicity has its price. The price, in this case, is disrespect for the language of the Clause, important precedents of this Court, and speedy trial policies. 35 "In all criminal prosecutions," the Sixth Amendment recites, "the accused shall enjoy the right to a speedy and public trial." On its face, the Sixth Amendment would seem to apply to one who has been publicly accused, has obtained dismissal of those charges, and has then been charged once again with the same crime by the same sovereign. Nothing in the language suggests that a defendant must be continuously under indictment in order to obtain the benefits of the speedy trial right. Rather, a natural reading of the language is that the Speedy Trial Clause continues to protect one who has been accused of a crime until the government has completed its attempts to try him for that crime. 36 Our cases, to the extent they address the issue, contradict the majority's view. In Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), the prosecutor entered a "nolle prosequi with leave" after the first trial ended in a mistrial. Under that procedure, the defendant was discharged from custody and subject to no obligation to report to the court, but the prosecutor could reinstate the indictment at any time upon application to the court. This Court held that the indefinite postponement of the prosecution, over the defendant's objection, "clearly" denied the defendant the right to a speedy trial. Id., at 222, 87 S.Ct., at 993. The Court reasoned that the defendant "may be denied an opportunity to exonerate himself in the discretion of the solicitor and held subject to trial, over his objection, throughout the unlimited period in which the solicitor may restore the case to the calendar. During that period, there is no means by which he can obtain a dismissal or have the case restored to the calendar for trial." Id., at 216, 87 S.Ct., at 990. In that case, of course, the indictment technically had not been dismissed when the defendant was discharged from custody. However, the prosecutor was required to take affirmative steps to reinstate the prosecution; no charges were actively pending against Klopfer. The Court nevertheless held that the speedy trial right applied. 37 Klopfer teaches that the anxiety suffered by an accused person, even after the initial prosecution has terminated and after he has been discharged from custody, warrants application of the speedy trial protection. The analysis in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), relied on by the majority, is entirely consistent with this teaching. The Court in Marion held that the Speedy Trial Clause does not apply to the period before a defendant is first indicted, arrested, or otherwise officially accused. However, the Court hardly suggested that after the first official accusation has been made, the dropping of charges prior to a second official accusation wipes the slate clean. 38 The Court explained its holding by stating that "the indictment was the first official act designating appellees as accused individuals." Id., at 324, 92 S.Ct., at 465. (emphasis added). Sixth Amendment provisions "would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time." Id., at 313, 92 S.Ct., at 459. (emphasis added). Prior to the time of arrest or indictment, an accused may suffer anxiety, but he does not suffer the special form of anxiety engendered by public accusation. "Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends." Id., at 320, 92 S.Ct., at 463. The Court did not address the question whether, after a public accusation has been made but charges have technically been dropped, the defendant is in precisely the same constitutional situation as if no accusation had ever been made. 39 Marion also adverts to a serious procedural impediment to extending the speedy trial right prior to a first arrest or indictment: inquiry into when the police could have made an arrest or when the prosecutor could have brought charges would raise difficult problems of proof. Id., at 321, n. 13, 92 S.Ct., at 463, n. 13; see id., at 313, 92 S.Ct., at 459. But in a case of successive prosecutions on the same charge, these difficulties do not exist: the speedy trial right should attach from the date of the initial accusation, a date which is simple to determine.1 In short, the majority's decision to suspend application of the speedy trial right is not required by, and may be inconsistent with, our prior cases.2 40 The majority also plainly ignores fundamental speedy trial policies. The special anxiety that a defendant suffers because of a public accusation does not disappear simply because the initial charges are temporarily dismissed. Especially when the defendant and the public are aware of an ongoing government investigation of the same charges, the defendant's interest in final resolution of the charges remains acute. After all, the government has revealed the seriousness of its threat of prosecution by initially bringing charges. The majority thus paints an entirely unrealistic portrait when it suggests that such a defendant "is, at most, in the same position as any other subject of a criminal investigation." Ante, at 8-9. 41 MacDonald was painfully aware of the ongoing Army and Justice Department investigations. He was interviewed again by military authorities soon after his honorable discharge. He repeatedly inquired about the progress of the investigations. He even proposed to submit to further interviews in order to speed final resolution of his case. MacDonald "realized that the favorable conclusion of the [military] proceedings was not the end of the government's efforts to convict him. Prudence obliged him to retain attorneys at his own expense for his continuing defense. He remained under suspicion and was subjected to the anxiety of the threat of another prosecution." MacDonald I, 531 F.2d, at 204 (footnote omitted). It is simply absurd to suggest that he has suffered no greater anxiety, disruption of employment, financial strain, or public obloquy than if the military charges had never been brought. 42 The majority's insistence that the dismissal of an indictment eliminates speedy trial protections is not only inconsistent with the language and policies of the Speedy Trial Clause and with this Court's decisions. It is also senseless. Any legitimate government reason for delay during the period between prosecutions can, indeed must, be weighed when a court determines whether the defendant's speedy trial right has been violated. No purpose is served by simply ignoring that period for speedy trial purposes.3 In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), this Court rejected an inflexible approach to the right to a speedy trial in favor of "a difficult and sensitive balancing process." Id., at 533, 92 S.Ct., at 2193 (footnote omitted). Lower court opinions indicate that this responsibility can be faithfully discharged in the special circumstances of successive prosecutions.4 43 It is no answer that the Due Process Clause protects against purposeful or tactical delay that causes the accused actual prejudice at trial. The due process constraint is limited, and does not protect against delay which is not for a tactical reason but which serves no legitimate prosecutorial purpose.5 See United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). According only limited protection is appropriate prior to the first arrest or indictment because the state has a substantial interest in conducting a relatively unrestricted pre-accusation investigation, see id., at 790-795, 97 S.Ct., at 2048-2051, and because a person not yet accused has a lesser interest in a speedy prosecution. But when a government has already investigated and accused a defendant, it is in a much better position, and properly shoulders a greater responsibility, to reinvestigate and reprosecute the defendant with reasonable promptness. Moreover, as explained above, delay between public accusation, dismissal of charges, and renewed indictment causes peculiar anxiety to the accused, as well as the other consequences of arrest described in Marion. Thus, the government must affirmatively demonstrate a legitimate reason, other than neglect or indifference, for such a delay. 44 The majority's approach denigrates speedy trial policies and presents a serious potential for abuse. Under that approach, the government could indefinitely delay a second prosecution for no reason, or even in bad faith,6 if the defendant is unable to show actual prejudice at trial. The Court of Appeals in this very case suggested that the Government may have proceeded on the assumption that pre-indictment delay would be of no speedy trial consequence. MacDonald I, supra, at 206, n. 17. I fear that, as a consequence of today's decision, unreasonable and unjustifiable delay between prosecutions may become commonplace. III 45 I conclude that application of the speedy trial right was not suspended during the period between the Army's dismissal of murder charges against MacDonald in October 1970 and the return of a civilian indictment on the same charges in January 1975. The question remains whether the delay violated his speedy trial right. I find the question close. However, after examining the four speedy trial right factors enunciated in Barker v. Wingo, supra—length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant—I agree with the Court of Appeals that MacDonald's speedy trial rights were violated. 46 The proper focus for this analysis is the 26-month period between June 1972 and the convening of a grand jury in August 1974.7 Neither the District Court nor the Court of Appeals found any legitimate reason for this delay. As the Court of Appeals' second panel concluded: "The primary reason for the two-year delay was either a disagreement between two groups in the Justice Department as to whether the case should be prosecuted, or just simple government bureaucracy (the contention of the involved Assistant U. S. Attorney)." 632 F.2d 258, 262 (CA4 1980) (MacDonald II). Although the FBI did conduct further tests and investigation after the grand jury was convened, the Government has not demonstrated that it could not have pursued those leads earlier. 47 MacDonald undeniably asserted his right to a speedy trial vigorously and often, beginning in January 1972. Although the Government's delay in pressing formal civilian charges prevented MacDonald from filing a formal motion to dismiss on speedy trial grounds, he invoked his right in the only meaningful way open to him. Indeed, the strength of his efforts is a powerful indication that he has suffered serious personal prejudice. See Barker v. Wingo, 407 U.S., at 531, 92 S.Ct., at 2192. 48 The last speedy trial factor, and the most difficult to evaluate on this record, is prejudice to the accused. Proof of actual prejudice to the defense at trial is not, of course, necessary to demonstrate a speedy trial violation. Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973) (per curiam). In Moore, this Court held that a defendant's speedy trial claim should not have been dismissed without further hearing, where the defendant was tried three years after he was first charged and 28 months after he demanded a speedy trial. In this case, the period of unjustified delay is at least two years, and MacDonald demanded an early disposition prior to that period. Because of this delay, a speedy trial violation could be found in this case, even without proof of actual prejudice at trial. The record is clear that the delay caused MacDonald to suffer other forms of substantial prejudice, including continuing anxiety, intrusive publicity, legal expense, and disruption of a new civilian career. 49 The proof of actual prejudice at trial in this case, although somewhat speculative, does buttress MacDonald's speedy trial claim. It is possible that Stoeckley's trial testimony would have been less confused and more helpful to MacDonald at an earlier date. This testimony was critical to MacDonald, whose principal defense was that she was one of a group of intruders who committed the murders. Although Stoeckley was hardly a reliable witness, she did testify at trial that she had no memory of the events that night, in contradiction to some of her earlier out-of-court statements. See MacDonald II, 632 F.2d, at 264-265. Her claim of loss of memory obviously became more credible with the passage of time. It is likewise possible that the inevitable "coaching" of Government witnesses prior to their testimony would have had lesser adverse impact on the defense, and could have been minimized more effectively by cross-examination, had the trial occurred earlier.8 See id., at 263-264. The unusual facts of this case, recited by the majority, suggest that slight differences in trial testimony may well have influenced the verdict.9 50 Balancing these factors, I conclude that the Court of Appeals was correct in finding a speedy trial right violation. The Government undoubtedly has an interest in renewing the investigation of a charge that has been dismissed, in evaluating carefully whether a second prosecution should be brought, and in avoiding undue haste, especially when the charge is murder. By the same token, when such a serious charge has already been brought, and when the defendant is suffering the consequences of that public charge and of a renewed investigation, the Government must not delay its decision for reasons of indifference or neglect. The Government's interest in reaching an informed decision whether to prosecute is certainly legitimate; but vague, unexplained references to internal disagreement about prosecution cannot justify more than two years of indecision. Because the record in this case reveals no legitimate reason for a substantial period of pretrial delay, and because MacDonald may have suffered prejudice at trial and clearly suffered other forms of prejudice, I would affirm the Court of Appeals' ruling that his speedy trial right was violated. IV 51 The majority's opinion in this case is a disappointing exercise in strained logic and judicial illusion. Suspending application of the speedy trial right in the period between successive prosecutions ignores the real impact of the initial charge on a criminal defendant and serves absolutely no governmental interest. This Court has warned before against "allowing doctrinaire concepts . . . to submerge the practical demands of the constitutional right to a speedy trial." Smith v. Hooey, 393 U.S. 374, 381, 89 S.Ct. 575, 578, 21 L.Ed.2d 607 (1969). The majority fails to heed that advice. 52 For the foregoing reasons, I dissent. 1 A woman generally within this description was apparently seen by the military police as they rushed to answer respondent's call. During the course of this case, considerable suspicion has been focused upon Helena Stoeckley. Stoeckley was 19 at the time and a heavy user of heroin, opium, mescaline, LSD, marihuana, and other drugs; within days after the crime she began telling people that she was involved in the murder or that she at least had accompanied the murderers and watched them commit the crimes. She also wore mourning dress and displayed a funeral wreath on the day of the victims' funeral. The investigation confirmed that she had been seen returning to her apartment at 4:30 on the morning following the killings in the company of men also generally fitting the descriptions given by MacDonald. Stoeckley testified at trial that she had no memory of the night in question because she was "stoned" that night. She did, however, admit that at the time of the crime she owned and frequently wore a blond wig and a pair of white boots and that she destroyed them within a few days after the crime because they might connect her with the episode. 2 Threads from MacDonald's pajama top, supposedly torn in the living room, were found in the master bedroom, some under his wife's body, and in the children's bedroom, but not in the living room. There were 48 puncture holes in the top, yet MacDonald had far fewer wounds. The police were able to identify the bloodstains of each victim, and their location did not support MacDonald's story. Blood matching the type of MacDonald's children was found on MacDonald's glasses and pajama top. Fragments of surgical gloves were found near the bodies of the victims; the gloves from which those fragments came were found under a sink in the house. 3 MacDonald's discharge barred any further military proceedings against him. United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955). 4 The District Court had jurisdiction because the crimes were committed on military property. 18 U.S.C. §§ 7(3), 1111. 5 In addition to the Speedy Trial Clause issue, MacDonald raised a number of issues involving the conduct of the trial and rulings of the trial judge. He also claimed that the delay in bringing him to trial resulted in a denial of his Fifth Amendment due process rights. The Court of Appeals declined to reach those issues. Accordingly, we do not decide those issues, instead leaving them for the Court of Appeals on remand. 6 Our analysis of the speedy trial claim is not to be influenced by consideration of the evidentiary basis of the jury verdict. The jury that heard all of the witnesses and saw the evidence unanimously decided that respondent murdered his wife and children. Respondent does not challenge the jury verdict itself. 7 Our holding agrees with the determination made by Congress in enacting the Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq. The Act, intended "to give effect to the sixth amendment right to a speedy trial . . .," S.Rep.No. 93-1021, p. 1 (1974), provides that if charges are initially dismissed and later reinstated, the period between the dismissal and the reinstatement is not to be included in computing the time within which a trial must commence. 18 U.S.C. §§ 3161(d), 3161(h)(6). Most of the Courts of Appeals considering this issue have also reached the conclusion that the period after dismissal of initial charges is not included in determining whether the Speedy Trial Clause has been violated. See, e.g., United States v. Hillegas, 578 F.2d 453, 457-458 (CA2 1978); Arnold v. McCarthy, 566 F.2d 1377, 1383 (CA9 1978); United States v. Martin, 543 F.2d 577 (CA6 1976), cert. denied, 429 U.S. 1050, 97 S.Ct. 762, 50 L.Ed.2d 766 (1977); United States v. Bishton, 150 U.S.App.D.C. 51, 55, 463 F.2d 887, 891 (1972). The Fifth Circuit reached a seemingly contrary result in United States v. Avalos, 541 F.2d 1100 (1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977). However in that case the court relied on unusual facts; the Government dismissed charges pending in one district in order to prosecute the defendants on those same charges in another district. In none of the cases cited in the dissenting opinion, post, at 17-18, n.2, from the First, Seventh, or Tenth Circuits did the Court of Appeals consider or discuss the issue before us. 8 Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), is not to the contrary. There, under an unusual state procedure, a prosecutor was able to suspend proceedings on an indictment indefinitely. The prosecutor could activate the charges at any time and have the case restored for trial, "without further order" of the court. Id., at 214, 87 S.Ct., at 989. The charges against the defendant were thus never dismissed or discharged in any real sense so the speedy trial guarantee continued to apply. 9 The Marion defendants were charged with operating a fraudulent home improvement business. The Court noted that the Washington Post ran a series of articles about the ongoing investigation of the business, and reported that the local United States Attorney predicted that indictments would be forthcoming. United States v. Marion, 404 U.S., at 309, 92 S.Ct., at 457. 10 The original Court of Appeals decision concluded "that MacDonald's military arrest was the functional equivalent of a civilian arrest" for Speedy Trial Clause purposes. United States v. MacDonald, 531 F.2d 196, 204 (CA4 1976). Judge Craven, dissenting, disagreed with that conclusion stating that the military proceedings were equivalent to a grand jury investigation followed by a failure to file an indictment. Id., at 209. In its petition for certiorari, the Government expressly declined to raise the issue of whether the military investigation triggered MacDonald's Sixth Amendment rights; we therefore do not express any opinion on that issue. 11 The initial Court of Appeals panel held that the prosecution by the Army and that by the Justice Department were conducted "by the government in its single sovereign capacity . . . ." Id., at 204. Of course, an arrest or indictment by one sovereign would not cause the speedy trial guarantees to become engaged as to possible subsequent indictments by another sovereign. 12 There is no allegation here that the Army acted in bad faith in dismissing the charges. This is not a case where the Government dismissed and later reinstituted charges to evade the speedy trial guarantee. The Army clearly dismissed its charges because the Commanding General of MacDonald's unit, following the recommendation of the Article 32 investigating officer, concluded that they were untrue. There is nothing to suggest that the Justice Department acted in bad faith in not securing an indictment until January 1975. After the Army dismissed its charges, it continued its investigation at the request of the Justice Department; the Army's initial 13-volume report was not submitted to the Justice Department until June 1972, and supplemental reports were filed as late as August 1973. Within a year, the Justice Department completed its review of the massive evidence thus accumulated and submitted the evidence to a grand jury. The grand jury returned the indictment five months later. Plainly the indictment of an accused—perhaps even more so the indictment of a physician—for the heinous and brutal murder of his pregnant wife and two small children is not a matter to be hastily arrived at either by the prosecution authorities or by a grand jury. The devastating consequences to an accused person from the very fact of such an indictment is a matter which responsible prosecutors must weigh carefully. The care obviously given the matter by the Justice Department is certainly not any indication of bad faith or deliberate delay. 1 Marion also notes that the statute of limitations will serve as protection in cases of pre-indictment delay. But no such protection exists here, since there is no statute of limitations for murder. 2 Contrary to the majority's suggestion, most of the Courts of Appeals considering the issue have concluded that the period after dismissal of initial charges is included for speedy trial purposes. The First, Fifth, Seventh, and Tenth Circuits have all reached this conclusion. See United States v. Cabral, 475 F.2d 715 (CA1 1973); United States v. Nixon, 634 F.2d 306, 308-309 (CA5), cert. denied, 454 U.S. 828, 102 S.Ct. 120, 70 L.Ed.2d 103 (1981); United States v. Avalos, 541 F.2d 1100, 1108, n. 13 (CA5 1976); United States v. McKim, 509 F.2d 769, 773 (CA5 1975); Jones v. Morris, 590 F.2d 684 (CA7) (per curiam), cert. denied, 440 u.s. 965, 99 S.Ct. 1513, 59 L.Ed.2d 780 (1979); United States v. DeTienne, 468 F.2d 151, 155 (CA7 1972), cert. denied, 410 U.S. 911, 93 S.Ct. 974, 35 L.Ed.2d 274 (1973); United States v. Merrick, 464 F.2d 1087, 1090 (CA10), cert. denied, 409 U.S. 1023, 93 S.Ct. 462, 34 L.Ed.2d 314 (1972). See also United States v. Small, 345 F.Supp. 1246, 1248-1250 (ED Pa.1972) (holding that right attaches from initial military arrest through civilian trial, although in fact civilian indictment immediately followed dismissal of military charges). But see United States v. Davis, 487 F.2d 112, 116 (CA5 1973), cert. denied, 415 U.S. 981, 94 S.Ct. 1573, 39 L.Ed.2d 878 (1974). Even the Circuits whose opinions the majority cites as support have issued somewhat contradictory signals on this question. See United States v. Lai Ming Tanu, 589 F.2d 82, 88-89 (CA2 1978) (leaving open question whether speedy trial right may ever apply continuously to successive state and federal prosecutions for the same transaction); United States v. Roberts, 548 F.2d 665 (CA6), cert. denied, sub nom. Williams v. United States, 431 U.S. 920, 97 S.Ct. 2188, 53 L.Ed.2d 232 (1977) (considering time between dismissal and indictment for speedy trial purposes without discussing contrary opinion in United States v. Martin, 543 F.2d 577 (CA6 1976), cert. denied, 429 U.S. 1050, 97 S.Ct. 762, 50 L.Ed.2d 766 (1977); United States v. Henry, 615 F.2d 1223, 1233, n. 13 (CA9 1980) (leaving question open, and limiting Arnold v. McCarthy, 566 F.2d 1377 (CA9 1978), to the case of a dismissal following a mistrial); United States v. Lara, 172 U.S.App.D.C. 60, 63-65, 520 F.2d 460, 463-465 (1975) (considering tactical Government delay between dismissal and indictment for speedy trial purposes). 3 The Government argues that considering the time between dismissal and reinstitution of charges for speedy trial purposes will have untoward consequences: it will discourage prosecutors from dismissing charges that were obtained improperly or prematurely, or that appear unwarranted in light of new evidence, and it will dissuade prosecutors from reopening dismissed charges in light of changed circumstances. The argument is specious, since a court will consider the Government's reasons for delay in ruling on the speedy trial issue. If the Government has dismissed charges in good faith and reopens the case based on material new evidence, then the delay should not count against the Government. In this case, the Court of Appeals sensitively evaluated the Government's reasons for delay and only counted a portion of that time against the Government. See n. 7, infra. 4 See, e.g., United States v. Henry, supra (assuming that time between indictments is considered in speedy trial calculus but finding no violation, where part of one-year delay was due to renewed investigation, part was due to negligence, and prejudice was not shown); United States v. Roberts, supra (considering time between dismissal of initial charges and return of indictment but finding no violation, where two of codefendants were involved in other court proceedings, evidence was complex, witnesses changed their stories, prosecution needed to judge whether to use confidential informants, and defendant showed no actual prejudice); Jones v. Morris, supra (considering time between dismissal of first indictment and reinstitution of proceedings but finding no violation, where defendant did not assert speedy trial right until after second indictment was brought, on the eve of trial; where delay, although unexplained, was not in bad faith; and where defendant proved no special anxiety or actual prejudice); United States v. McKim, supra (considering time between first indictment and trial on third indictment but finding no violation, where delay was only one year and defendant did not prove actual prejudice). 5 Whether the delay in this case falls within that category is unclear. The Court of Appeals did not reach the due process issue, and this Court therefore properly leaves it open on remand. 6 The majority's statement that the delay in this case was not in bad faith, ante, at 10-11, n. 12, is puzzling. Under the majority's constricted view of the Sixth Amendment, the good or bad faith of the government in the period between successive prosecutions is entirely irrelevant to whether the defendant's speedy trial right has been violated, since the defendant is not continually under formal accusation during that period. 7 Although the total period of delay between initial prosecution and trial is more than nine years, the period prior to dismissal of military charges is not chargeable to the Government because those charges were promptly resolved. The Court of Appeals properly also gave little weight to the period between the CID's initial reinvestigation and the submission of its report to the Justice Department in June 1972, since the prior dismissal for insufficient evidence warranted a more extensive investigation. The period subsequent to the civilian indictment was mainly consumed by judicial proceedings to evaluate MacDonald's speedy trial claims. 8 For example, a babysitter who had testified in 1970 that she had not seen an ice pick in MacDonald's home had changed her story by the time of trial. Cross-examination by the defense did not cause her to reaffirm her earlier story. Tr. 3559-3560, 3567-3572. 9 I therefore disagree with the majority that the speedy trial analysis should not be influenced by the evidentiary basis for the jury verdict. Ante, at 6, n. 6. Moreover it is obvious that respondent "does not challenge the jury verdict itself," ibid., only because that issue is not directly presented on this petition.

01

456 U.S. 37 102 S.Ct. 1518 71 L.Ed.2d 725 Chester R. UPHAM, Jr. and Eric Cliffordv.A. M. SEAMON et al. No. 81-1724. April 1, 1982. PER CURIAM. 1 After the 1980 census, Texas' congressional delegation increased from 24 to 27 members. A reapportionment plan, Senate Bill No. 1 (SB1), was enacted on August 14, 1981, and then submitted to the Attorney General for preclearance. While it was pending before him, suit was filed in the Federal District Court for the Eastern District of Texas challenging the constitutionality of SB1 and its validity under § 2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U.S.C. § 1973. A three-judge court was empaneled, held a hearing, and delayed any further action until after the Attorney General acted. On January 29, 1982, the Attorney General entered an objection to SB1. Specifically, he objected to the lines drawn for two contiguous districts in south Texas, Districts 15 and 27.1 He stated that the State "has satisfied its burden of demonstrating that the submitted plan is nondiscriminatory in purpose and effect" with respect to the other 25 districts. In the face of this objection, which made SB1 unenforceable, and the obvious unconstitutionality of the prior apportionment plan,2 the court ordered the parties to provide written submissions along with maps, plats, and other data to aid the court in reaching a court-ordered reapportionment plan. A hearing was held on February 9. The court then proceeded to resolve the Attorney General's objection to Districts 15 and 27. 536 F.Supp. 931. All other districts of the court's plan, except for those in Dallas County, were identical to those of SB1. The court devised its own districts for Dallas County, and it is that part of the District Court's judgment that is on appeal here. A stay and expedited consideration are requested. 2 Judge Sam Johnson and Judge Justice wrote separately, but agreed that SB1's plan for Dallas County could not be implemented.3 Judge Justice alone determined that the SB1 plan for Dallas County was unconstitutional. In Judge Johnson's view, since SB1 was a nullity, the entire plan had to be a court-ordered plan which must conform to § 5, 42 U.S.C. § 1973c, standards, including the "no retrogression rule" of Beer v. United States, 425 U.S. 130, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976). However, he thought that in two respects the standards applicable to court-ordered plans were stricter than those that must be observed by a legislature: population equality and racial fairness. Judicial application of the no retrogression standard, in his view, is limited to consideration of purely numerical factors; unlike a legislature, a court cannot consider the "innumerable political factors that may affect a minority group's access to the political process." 536 F.Supp., at 948. Although a court must defer to legislative judgments on reapportionment as much as possible, it is forbidden to do so when the legislative plan would not meet the special standards of population equality and racial fairness that are applicable to court-ordered plans. 3 SB1's treatment of Dallas County failed to meet the test of racial fairness for a court-ordered plan. Under SB1, minority strength in District 5, in Dallas County, would have gone from 29.1 percent to 12.1 percent. Apparently, the minority votes had been shifted to District 24, which increased in minority population from 37.4 percent to 63.8 percent. Judge Johnson reasoned that this change would reduce minority effectiveness in District 5 substantially and would not guarantee a "safe" seat in District 24. This "would result in a severe retrogression in the Dallas County area." Id., at 957, n. 39. He specifically recognized that SB1's plans for Dallas County had been formulated in response to the interests expressed by minority voters in creating a "safe" seat. He did not hold this legislative response to be unconstitutional, nor did he criticize it as inconsistent with § 5 as it applied to legislative redistricting. A court, however, could not, in his view, consider the same factors as a legislature.4 The court, therefore, redrew the boundaries of Districts 5 and 24, and the two adjoining Districts, 3 and 26. Under the court-ordered plan, District 5 would have a minority population of 31.87 percent and District 24 would have 45.7 percent. 4 Appellants, who are Republican Party officials in Texas, contend that the District Court simply substituted its own reapportionment preferences for those of the state legislature and that this is inconsistent with Wise v. Lipscomb, 437 U.S. 535, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978); McDaniel v. Sanchez, 452 U.S. 130, 101 S.Ct. 2224, 68 L.Ed.2d 724 (1981); and White v. Weiser, 412 U.S. 783, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973).5 They argue that in the absence of any objection to the Dallas County districts by the Attorney General, and in the absence of any finding of a constitutional or statutory violation with respect to those districts, a court must defer to the legislative judgments the plans reflect, even under circumstances in which a court order is required to effect an interim legislative apportionment plan.6 We agree and, therefore, summarily reverse. 5 The relevant principles that govern federal district courts in reapportionment cases are well established: 6 "From the beginning, we have recognized that 'reapportionment is primarily a matter for legislative consideration and determination, and that judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so.' We have adhered to the view that state legislatures have 'primary jurisdiction' over legislative reapportionment. . . . Just as a federal district court, in the context of legislative reapportionment, should follow the policies and preferences of the State, as expressed in statutory and constitutional provisions or in the reapportionment plans proposed by the state legislature, whenever adherence to state policy does not detract from the requirements of the Federal Constitution, we hold that a district court should similarly honor state policies in the context of congressional reapportionment. In fashioning a reapportionment plan or in choosing among plans, a district court should not pre-empt the legislative task nor 'intrude upon state policy any more than necessary.' " White v. Weiser, 412 U.S., at 794-795, 93 S.Ct., at 2354 (citations omitted). 7 Weiser itself presents a good example of when such an intrusion is not necessary. We held there that the District Court erred when, in choosing between two possible court-ordered plans, it failed to choose that plan which most closely approximated the state-proposed plan. The only limits on judicial deference to state apportionment policy, we held, were the substantive constitutional and statutory standards to which such state plans are subject. Id., at 797, 93 S.Ct., at 2355. 8 We reached a similar conclusion in Whitcomb v. Chavis, 403 U.S. 124, 160-161, 91 S.Ct. 1858, 1877-1878, 29 L.Ed.2d 363 (1971), in which we held that the District Court erred in fashioning a court-ordered plan that rejected state policy choices more than was necessary to meet the specific constitutional violations involved. Indeed, our decision in Whitcomb directly conflicts with the lower court's order in this case. Specifically, we indicated that the District Court should not have rejected all multimember districts in the State, absent a finding that those multimember districts were unconstitutional. Ibid. We reached this conclusion despite the fact that we had previously held that "when district courts are forced to fashion apportionment plans, single-member districts are preferable to large multi-member districts as a general matter." Connor v. Johnson, 402 U.S. 690, 692, 91 S.Ct. 1760, 1762, 29 L.Ed.2d 268 (1971). See also Chapman v. Meier, 420 U.S. 1, 19, 95 S.Ct. 751, 762, 42 L.Ed.2d 766 (1975) (indicating that court-ordered plans should, in some circumstances, defer to, or respect, a state policy of multi-member districting). 9 It is true that this Court has held that court-ordered reapportionment plans are subject in some respects to stricter standards than are plans developed by a state legislature. Wise v. Lipscomb, supra, at 540, 98 S.Ct., at 2497; Connor v. Finch, 431 U.S. 407, 414, 97 S.Ct. 1828, 1833, 52 L.Ed.2d 465 (1977). This stricter standard applies, however, only to remedies required by the nature and scope of the violation: "The remedial powers of an equity court must be adequate to the task, but they are not unlimited." Whitcomb v. Chavis, supra, at 161, 91 S.Ct., at 1761. We have never said that the entry of an objection by the Attorney General to any part of a state plan grants a district court the authority to disregard aspects of the legislative plan not objected to by the Attorney General.7 There may be reasons for rejecting other parts of the State's proposal, but those reasons must be something other than the limits on the court's remedial actions. Those limits do not come into play until and unless a remedy is required; whether a remedy is required must be determined on the basis of the substantive legal standards applicable to the State's submission. 10 Whenever a district court is faced with entering an interim reapportionment order that will allow elections to go forward it is faced with the problem of "reconciling the requirements of the Constitution with the goals of state political policy." Connor v. Finch, supra, at 414, 97 S.Ct., at 1833. An appropriate reconciliation of these two goals can only be reached if the district court's modifications of a state plan are limited to those necessary to cure any constitutional or statutory defect. Thus, in the absence of a finding that the Dallas County reapportionment plan offended either the Constitution or the Voting Rights Act, the District Court was not free, and certainly was not required, to disregard the political program of the Texas State Legislature. 11 Although the District Court erred, it t does not necessarily follow that its plan should not serve as an interim plan governing the forthcoming congressional elections. The filing date for candidates, which was initially postponed by the District Court, has now come and gone. The District Court has also adjusted other dates so that the primary elections scheduled for May 1 may be held. The State of Texas, although it disagrees with the judgment of the District Court with respect to Dallas County, urges that the election process should not now be interrupted and a new schedule adopted, even for Dallas County. It is urged that because the District Court's plan is only an interim plan and is subject to replacement by the legislature in 1983, the injury to appellants, if any, will not be irreparable. 12 It is true that we have authorized District Courts to order or to permit elections to be held pursuant to apportionment plans that do not in all respects measure up to the legal requirements, even constitutional requirements. See, e.g., Bullock v. Weiser, 404 U.S. 1065, 92 S.Ct. 750, 30 L.Ed.2d 752 (1972); Whitcomb v. Chavis, 396 U.S. 1055, 90 S.Ct. 748, 24 L.Ed.2d 757 (1970). Necessity has been the motivating factor in these situations. 13 Because we are not now as familiar as the District Court with the Texas election laws and the legal and practical factors that may bear on whether the primary elections should be rescheduled, we vacate the District Court judgment and remand the case to that court for further proceedings. See Connor v. Waller, 421 U.S. 656, 95 S.Ct. 2003, 44 L.Ed.2d 486 (1975); Wesberry v. Sanders, 376 U.S. 1, 4, 84 S.Ct. 526, 528, 11 L.Ed.2d 481 (1964). Having indicated the legal error of the District Court, we leave it to that court in the first instance to determine whether to modify its judgment and reschedule the primary elections for Dallas County or, in spite of its erroneous refusal to adopt the SB1 districts for Dallas County, to allow the election to go forward in accordance with the present schedule. 14 The judgment of the Court shall issue forthwith. 15 So ordered. 1 His objection, however, went to the entire plan, and on February 23, he refused the State's request that the objection be severed and addressed to only a portion of SB1 (but see n. 7, infra). 2 The existing apportionment plan created only 24, not 27 districts, and the changes in population over the past 10 years had created extreme numerical variations between the districts, which were unconstitutional under the one-man, one-vote rule. 3 Judge Parker dissented from the relevant part of the court order—he would have followed SB1 in Dallas County. 4 The relevant passage of Judge Johnson's opinion reads as follows: "This Court recognizes that certain minority group members expressed a desire for a 'safe' minority district in Dallas County. After consideration of numerous political factors, and substantial legislative battling, the Texas Legislature decided on the configurations in S.B.1 . . . . The legislature was at liberty to engage in such considerations. This Court, in fashioning a nonretrogressive apportionment plan does not have that privilege. It must evaluate the new plan without access to questions regarding the ability of separate minority groups to form coalitions or other political concerns. . . . It is not before this Court to determine whether considerations valid in the legislative context justify simply increasing swing-vote influence in one district at the expense of the influence previously enjoyed in a neighboring district. This Court determines, however, that, in the context of a court-ordered apportionment plan, such a trade-off would result in a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." 536 F.Supp., at 957, n. 39. 5 Appellants are supported in this appeal by the State of Texas. While Texas agrees with them on the merits of this case and supports a summary reversal of the District Court decision, it asks that this Court delay any remedial action until after the 1982 elections. In other words, Texas challenges the merits of the District Court decision, but contends that it would be too disruptive and expensive to attempt to alter the 1982 elections at this point. 6 Appellants propose two other arguments. First, under Texas law an invalid statutory provision is severable. Therefore, the fact that the Attorney General objected to the validity of SB1's district lines for 2 districts did not invalidate the plans for the other 25 districts. Second, the "stricter standards" applicable to court-ordered plans apply only to the use of multimember districts and population variations beyond a de minimis amount. In particular, this "stricter standard" does not apply to plans that have already been precleared by the Attorney General. In light of our disposition of the case, we need not reach either of these arguments. 7 The Attorney General took the same position in declining to grant preclearance to that portion of SB1 that he did not find objectionable: "Since the federal district courts will be acting in the stead of the Legislature we believe that the courts should attempt to effectuate the legislative judgment to the extent possible and modify the Legislature's plans only as necessary to meet the concerns raised in the objection letters. In other words, we believe the court should make such modifications to the plans as would normally be made by the Legislature if it were in session." App. to Juris. Statement F-3 (letter of Wm. Bradford Reynolds, Assistant Attorney General, to Texas Secretary of State). In this Court, the Solicitor General takes a slightly different position. He contends that the question of what weight a district court should give to a legislative plan that is partially objected to by the Attorney General is substantial and, therefore, merits plenary consideration by this Court.

12

456 U.S. 152 102 S.Ct. 1584 71 L.Ed.2d 816 UNITED STATES, Petitioner,v.Joseph C. FRADY. No. 80-1595. Argued Dec. 8, 1981. Decided April 5, 1982. Rehearing Denied May 24, 1982. See 456 U.S. 1001, 102 S.Ct. 2287. Syllabus In 1963, respondent was convicted of first-degree murder and sentenced to death by a jury in the Federal District Court for the District of Columbia, which at that time had exclusive jurisdiction over local felonies committed in the District. The Court of Appeals for the District of Columbia Circuit, which then acted as the local appellate court, upheld the conviction but set aside the death sentence, and respondent was then resentenced to a life term. Respondent filed the present motion in the District Court under 28 U.S.C. § 2255 (the latest in a long series of collateral attacks on his sentence), seeking to vacate the sentence on the ground that he was convicted by a jury erroneously instructed on the meaning of malice, thus allegedly eliminating any possibility of a manslaughter verdict. The District Court denied the motion because respondent failed to challenge the instructions on direct appeal or in prior motions. The Court of Appeals reversed, holding that the proper standard to apply to respondent's claim was the "plain error" standard of Federal Rule of Criminal Procedure 52(b) governing relief on direct appeal from errors not objected to at trial, and, finding the challenged instruction plainly erroneous, vacated respondent's sentence and remanded the case for a new trial or entry of a manslaughter judgment. Held : 1. This Court has jurisdiction to review the decision below and is not required to refrain from doing so on the alleged ground that the decision of the Court of Appeals was based on an adequate and independent local ground of decision. There is no basis for concluding that the ruling below was or should have been grounded on local District of Columbia law, rather than on the general federal law applied to all § 2255 motions. Equal protection principles do not require that a § 2255 motion by a prisoner convicted in 1963 be treated as though it were a motion under the District of Columbia Code after 1970. Pp. 1590-1591. 2. The Court of Appeals' use of Rule 52(b)'s "plain error" standard to review respondent's § 2255 motion was contrary to long-established law. Because it was intended for use on direct appeal, such standard is out of place when a prisoner launches a collateral attack against a conviction after society's legitimate interest in the finality of the judgment has been perfected by the expiration of time allowed for direct review or by the affirmance of the conviction on appeal. To obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal. Pp. 162-166. 3. The proper standard for review of respondent's conviction is the "cause and actual prejudice" standard under which, to obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both "cause" excusing his double procedural default and "actual prejudice" resulting from the errors of which he complains. Pp. 167-169. 4. Respondent has fallen far short of meeting his burden of showing not merely that the errors at his trial created a possibility of prejudice but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions. The strong uncontradicted evidence of malice in the record, coupled with respondent's utter failure to come forward with a colorable claim that he acted without malice, disposes of his contention that he suffered such actual prejudice that reversal of his conviction 19 years later could be justified. Moreover, an examination of the jury instructions shows no substantial likelihood that the same jury that found respondent guilty of first-degree murder would have concluded, if only the malice instructions had been better framed that his crime was only manslaughter. Pp. 169-175. 204 U.S.App.D.C. 234, 636 F.2d 506, reversed and remanded. Andrew L. Frey, Washington, D. C., for petitioner. Daniel M. Schember, Washington, D. C., for respondent. Justice O'CONNOR delivered the opinion of the Court. 1 Rule 52(b) of the Federal Rules of Criminal Procedure permits a criminal conviction to be overturned on direct appeal for "plain error" in the jury instructions, even if the defendant failed to object to the erroneous instructions before the jury retired, as required by Rule 30. In this case we are asked to decide whether the same standard of review applies on a collateral challenge to a criminal conviction brought under 28 U.S.C. § 2255. 2 * A. 3 Joseph Frady, the respondent, does not dispute that 19 years ago he and Richard Gordon killed Thomas Bennett in the front room of the victim's house in Washington, D. C. Nonetheless, because the resolution of this case depends on what the jury learned about Frady's crime, we must briefly recount what happened, as told by the witnesses at Frady's trial and summarized by the Court of Appeals. See Frady v. United States, 121 U.S.App.D.C. 78, 348 F.2d 84 (en banc), (Frady I), cert. denied, 382 U.S. 909, 86 S.Ct. 247, 15 L.Ed.2d 160 (1965). 4 The events leading up to the killing began at about 4:30 p. m. on March 13, 1963, when two women saw Frady drive slowly by Bennett's house in an old car. Later, at about 7:00 p. m., Frady, accompanied by Richard Gordon and Gordon's friend, Elizabeth Ryder, returned to the same block. On this second trip, Ryder overheard Frady say "something about that is the house over there," at which point Frady and Gordon looked in the direction of the victim's house. 5 After reconnoitering Bennett's home, Frady, Gordon, and Ryder drove across town to a restaurant, where they were joined by George Bennett, Thomas Bennett's brother. At the restaurant Ryder heard George Bennett tell Frady that "he needed time to get the furniture and things settled." She also heard Frady ask Bennett "if he hit a man in the chest, could you break a rib and fracture or puncture a lung, could it kill a person?" Bennett answered that "[y]ou have to hit a man pretty hard." Just before they left the restaurant, Ryder heard George Bennett say: "If you do a good job you will get a bonus." Ryder, Gordon, and Frady then set out by car for 11th Place, around the corner from Thomas Bennett's home, where they parked, leaving the motor running. Gordon and Frady told Ryder they were going "just around the corner." As Gordon got out, Ryder saw him reach down and pick up something. She could not see exactly what it was, but it "looked like a cuff of a glove or heavy material of some kind." 6 A little after 8:30 p. m., a neighbor heard knocking at the front door of Bennett's house, followed by the noise of a fight in progress. At 8:44 p. m., she called the police. Within a couple of minutes, two policemen in a patrol wagon arrived, and one of them got out in time to see Frady and Gordon emerge from Bennett's front door. 7 Inside Bennett's house, police officers later found a shambles of broken, disordered furniture and blood-spattered walls. Thomas Bennett lay dead in a pool of blood. His neck and chest had suffered horseshoe-shaped wounds from the metal heel plates on Frady's leather boots and his head was caved in by blows from a broken piece of a tabletop, which, significantly, bore no fingerprints. One of Bennett's eyes had been knocked from its socket. 8 Outside, the policeman on foot heard Frady and Gordon exclaim, "The cops!" as they emerged from the house. They immediately took flight, running around the corner toward their waiting automobile. Both officers pursued, one on foot, the other in the police wagon. As Frady and Gordon ran, one of them threw Thomas Bennett's wallet and a pair of gloves under a parked car. Frady and Gordon managed to reach their waiting automobile and scramble into it without being captured by the officer following on foot, but the patrol wagon arrived in time to block their departure. One of them was then heard to remark, "They've got us." When arrested, Frady and Gordon were covered with their victim's blood. Unlike their victim, however, neither had sustained an injury, apart from a cut on Gordon's forehead. B 9 Although Frady now admits that the evidence that he and Gordon caused Bennett's death was "overwhelming,"1 at his trial in the United States District Court for the District of Columbia Frady defended solely by denying all responsibility for the killing, suggesting through his attorney that another man, the real murderer, had been seen leaving the victim's house while the police were preoccupied apprehending Frady and Gordon. Consistent with this theory, Frady did not raise any justification, excuse, or mitigating circumstance. A jury convicted Frady of first-degree murder and robbery, and sentenced him to death by electrocution. 10 Sitting en banc, the Court of Appeals for the District of Columbia Circuit upheld Frady's first-degree murder conviction by a vote of 8-1. Frady I, supra. Apparently all nine judges would have affirmed a conviction for second-degree murder.2 11 Nevertheless, by a vote of 5-4, the court set aside Frady's death sentence. The five judges in the majority were unable to agree on a rationale for that result. Four of the five believed the procedures used to instruct and poll the jury on the death penalty were too ambiguous to sustain a sentence of death.3 The fifth and deciding vote was cast by a judge who believed the District Court should have adopted, for the first time in the District of Columbia, a procedure bifurcating the guilt and sentencing phases of Frady's trial. 121 U.S.App.D.C., at 85, 348 F.2d, at 91 (McGowan, J., concurring). By this narrow margin, Frady escaped electrocution. 12 Frady was then resentenced to a life term. Almost immediately, he began a long series of collateral attacks on his sentence,4 culminating in the case now before us. C 13 Frady initiated the present action by filing a motion under 28 U.S.C. § 22555 seeking the vacation of his sentence because the jury instructions used at his trial in 1963 were defective. Specifically, Frady argued that the Court of Appeals, in cases decided after his trial and appeal, had disapproved instructions identical to those used in his case. As determined by these later rulings,6 the judge at Frady's trial had improperly equated intent with malice by stating that "a wrongful act . . . intentionally done . . . is therefore done with malice aforethought." See 204 U.S.App.D.C. 234, 236, n. 6, 636 F.2d 506, 508, n. 6 (1980). Also, the trial judge had incorrectly instructed the jury that "the law infers or presumes from the use of such weapon in the absence of explanatory or mitigating circumstances the existence of the malice essential to culpable homicide." See id., at 236, 636 F.2d, at 508. In his § 2255 motion Frady contended that these instructions compelled the jury to presume malice and thereby wrongfully eliminated any possibility of a manslaughter verdict, since manslaughter was defined as culpable homicide without malice.7 14 The District Court denied Frady's § 2255 motion, stating that Frady should have challenged the jury instructions on direct appeal, or in one of his many earlier motions. The Court of Appeals reversed. The court held that the proper standard to apply to Frady's claim is the "plain error" standard governing relief on direct appeal from errors not objected to at trial, Fed.Rule Crim.Proc. 52(b), rather than the "cause and actual prejudice" standard enunciated in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), and Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), governing relief on collateral attack following procedural default at trial. Finding the challenged instructions to be plainly erroneous, the court vacated Frady's sentence and remanded the case for a new trial or, more realistically, the entry of a judgment of manslaughter. Over a vigorous dissent, the full Court of Appeals denied the Government a rehearing en banc. 15 We granted the Government's petition for a writ of certiorari to review whether the Court of Appeals properly invoked the "plain error" standard in considering Frady's belated collateral attack. 453 U.S. 911, 101 S.Ct. 3142, 69 L.Ed.2d 994 (1981). II 16 Before we reach the merits, however, we first must consider an objection Frady makes to our grant of certiorari. Frady argues that we should refrain from reviewing the decision below because the issues presented pertain solely to the local law of the District of Columbia, with which we normally do not interfere.8 17 Frady's contention is that the federal courts in the District of Columbia exercise a purely local jurisdictional function when they rule on a § 2255 motion brought by a prisoner convicted of a local law offense. Thus, according to Frady, the general federal law controlling the disposition of § 2255 motions does not apply to his case. Instead, a special local brand of § 2255 law, developed to implement that section for the benefit of local offenders in the District of Columbia, controls. Frady concludes that we should therefore refrain from disturbing the ruling below, since it is based on an adequate and independent local ground of decision.9 18 To examine Frady's contention, it is necessary to review some history. When Frady was tried in 1963, the United States District Court for the District of Columbia had exclusive jurisdiction over local felonies, and the United States Court of Appeals for the District of Columbia Circuit acted as the local appellate court, issuing binding decisions of purely local law. In 1970, however, the District of Columbia Court Reform and Criminal Procedure Act (Court Reform Act), 84 Stat. 473, split the local District of Columbia and federal criminal jurisdictions, directing local criminal cases to a newly created local court system and retaining (with minor exceptions) only federal criminal cases in the existing Federal District Court and Court of Appeals. 19 As part of this division of jurisdiction, the Court Reform Act substituted for § 2255 a new local statute controlling collateral relief for those convicted in the new local trial court. See D.C.Code § 23-110 (1981). The Act, however, did not alter the jurisdiction of the federal courts in the District to hear postconviction motions and appeals brought under § 2255, either by prisoners like Frady who were convicted of local offenses prior to the Act, or by prisoners convicted in federal court after the Act. 20 The crux of Frady's argument is that the equal protection component of the Due Process Clause of the Fifth Amendment would be violated unless the Court Reform Act is interpreted as implicitly and retroactively splitting, not just the District's court system, but also the District's law governing § 2255 motions. According to Frady, equal protection principles require that a § 2255 motion brought by a prisoner convicted of a local crime in Federal District Court prior to the passage of the Court Reform Act be treated identically to a motion under local D.C.Code § 23-110 brought by a prisoner convicted in the local Superior Court after the passage of the Act. Frady suggests that the Court of Appeals for this reason must have ruled on his motion as though it were subject to the local law developed pursuant to § 23-110, and that we should not intervene in this local dispute. 21 Frady's argument, however, was neither made to the court below nor followed by it. Nowhere in the Court of Appeals' opinion—or in the submissions to that court or to the District Court10—is there any hint that there may be peculiarities of § 2255 law unique to collateral attack in the District of Columbia. To the contrary, the analysis and authorities cited by the Court of Appeals make it clear that the court relied on the general federal law controlling all § 2255 motions, and did not intend to afford Frady's § 2255 motion special treatment simply because Frady was convicted under the District of Columbia Code rather than under the United States Code. 22 Moreover, the Court of Appeals would have erred had it done so. There is no reason to believe that Congress intended the result Frady suggests, and he does not attempt the impossible task of showing that it did. Furthermore, Frady's suggestions to the contrary notwithstanding, equal protection principles do not require that a motion filed pursuant to § 2255 by a prisoner convicted in the Federal District Court in 1963 be treated as though it had been filed pursuant to D.C.Code § 23-110 after 1970. In fact, even those tried in federal court contemporaneously with those tried for the same offense in the local court need not always be treated identically. As we noted in Swain v. Pressley, 430 U.S. 372, 379-380, n. 12, 97 S.Ct. 1224, 1229, n. 12, 51 L.Ed.2d 411 (1977), for example, persons convicted in the local courts are not denied equal protection of the laws simply because they, unlike persons convicted in the federal courts, must bring collateral challenges to their convictions before Art. I judges.11 23 In short, we find no basis whatever for concluding that the ruling below was or should have been grounded on local District of Columbia law, rather than the general federal law applied to all § 2255 motions.12 Therefore, we proceed to the merits. III A. 24 Nineteen years after his crime, Frady now complains he was convicted by a jury erroneously instructed on the meaning of malice. At trial, however, Frady did not object to the instructions, nor did he raise the issue on direct appeal. Rule 30 of the Federal Rules of Criminal Procedure declares in pertinent part: 25 "No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." Rule 52(b), however, somewhat tempers the severity of Rule 30. It grants the courts of appeals the latitude to correct particularly egregious errors on appeal regardless of a defendant's trial default: 26 "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." 27 Rule 52(b) was intended to afford a means for the prompt redress of miscarriages of justice.13 By its terms, recourse may be had to the Rule only on appeal from a trial infected with error so "plain" the trial judge and prosecutor were derelict in countenancing it, even absent the defendant's timely assistance in detecting it. The Rule thus reflects a careful balancing of our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly redressed.14 28 Because it was intended for use on direct appeal, however, the "plain error" standard is out of place when a prisoner launches a collateral attack against a criminal conviction after society's legitimate interest in the finality of the judgment has been perfected by the expiration of the time allowed for direct review or by the affirmance of the conviction on appeal. Nevertheless, in 1980 the Court of Appeals applied the "plain error" standard to Frady's long-delayed § 2255 motion, as though the clock had been turned back to 1965 when Frady's case was first before the court on direct appeal. In effect, the court allowed Frady to take a second appeal 15 years after the first was decided. 29 As its justification for this action, the Court of Appeals pointed to a single phrase to be found in our opinion in Davis v. United States, 411 U.S., at 240-241, 93 S.Ct., at 1581-1582. There we asserted that "no more lenient standard of waiver should apply" on collateral attack than on direct review. Seizing on this phrase, the Court of Appeals interpreted "no more lenient" as meaning, in effect, no more stringent, and for this reason applied the "plain error" standard for direct review to Frady's collateral challenge, despite long-established contrary authority. 30 By adopting the same standard of review for § 2255 motions as would be applied on direct appeal, the Court of Appeals accorded no significance whatever to the existence of a final judgment perfected by appeal. Once the defendant's chance to appeal has been waived or exhausted, however, we are entitled to presume he stands fairly and finally convicted, especially when, as here, he already has had a fair opportunity to present his federal claims to a federal forum. Our trial and appellate procedures are not so unreliable that we may not afford their completed operation any binding effect beyond the next in a series of endless postconviction collateral attacks. To the contrary, a final judgment commands respect. 31 For this reason, we have long and consistently affirmed that a collateral challenge may not do service for an appeal. See, e.g., United States v. Addonizio, 442 U.S. 178, 184-185, 99 S.Ct. 2235, 2239-2240, 60 L.Ed.2d 805 (1979); Hill v. United States, 368 U.S. 424, 428-429, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962); Sunal v. Large, 332 U.S. 174, 181-182, 67 S.Ct. 1588, 1592, 91 L.Ed. 1982 (1947); Adams v. United States ex rel. McCann, 317 U.S. 269, 274, 63 S.Ct. 236, 239, 87 L.Ed. 268 (1942); Glasgow v. Moyer, 225 U.S. 420, 428, 32 S.Ct. 753, 755, 56 L.Ed. 1147 (1912); In re Gregory, 219 U.S. 210, 213, 31 S.Ct. 143, 55 L.Ed. 184 (1911). As we recently had occasion to explain: 32 "When Congress enacted § 2255 in 1948, it simplified the procedure for making a collateral attack on a final judgment entered in a federal criminal case, but it did not purport to modify the basic distinction between direct review and collateral review. It has, of course, long been settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment. The reasons for narrowly limiting the grounds for collateral attack on final judgments are well known and basic to our adversary system of justice." United States v. Addonizio, supra, at 184, 99 S.Ct., at 2239 (footnotes omitted). 33 This citation indicates that the Court of Appeals erred in reviewing Frady's § 2255 motion under the same standard as would be used on direct appeal, as though collateral attack and direct review were interchangeable. 34 Moreover, only five years ago we expressly stated that the plain-error standard is inappropriate for the review of a state prisoner's collateral attack on erroneous jury instructions: 35 "Orderly procedure requires that the respective adversaries' views as to how the jury should be instructed be presented to the trial judge in time to enable him to deliver an accurate charge and to minimize the risk of committing reversible error. It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court. 36 "The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977) (emphasis added) (footnotes omitted). 37 Seemingly, we could not have made the point with greater clarity. Of course, unlike in the case before us, in Kibbe the final judgment of a state, not a federal, court was under attack, so considerations of comity were at issue that do not constrain us here. But the Federal Government, no less than the States, has an interest in the finality of its criminal judgments. In addition, a federal prisoner like Frady, unlike his state counterparts, has already had an opportunity to present his federal claims in federal trial and appellate forums. On balance, we see no basis for affording federal prisoners a preferred status when they seek postconviction relief. 38 In sum, the lower court's use of the "plain error" standard to review Frady's § 2255 motion was contrary to long-established law from which we find no reason to depart. We reaffirm the well-settled principle that to obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal.15 B 39 We believe the proper standard for review of Frady's motion is the "cause and actual prejudice" standard enunciated in Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), and later confirmed and extended in Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), and Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Under this standard, to obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) "cause" excusing his double procedural default, and (2) "actual prejudice" resulting from the errors of which he complains. In applying this dual standard to the case before us, we find it unnecessary to determine whether Frady has shown cause, because we are confident he suffered no actual prejudice of a degree sufficient to justify collateral relief 19 years after his crime.16 40 In considering the prejudice, if any, occasioned by the erroneous jury instructions used at Frady's trial, we note that in Wainwright v. Sykes we refrained from giving "precise content" to the term "prejudice," expressly leaving to future cases further elaboration of the significance of that term. Id., at 91, 97 S.Ct., at 2508. While the import of the term in other situations thus remains an open question, our past decisions nevertheless eliminate any doubt about its meaning for a defendant who has failed to object to jury instructions at trial. 41 Recently, for example, Justice STEVENS, in his opinion without dissent in Henderson v. Kibbe, summarized the degree of prejudice we have required a prisoner to show before obtaining collateral relief for errors in the jury charge as " 'whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,' not merely whether 'the instruction is undesirable, erroneous, or even universally condemned.' " 431 U.S., at 154, 97 S.Ct., at 1736 (quoting Cupp v. Naughten, 414 U.S. 141, 147, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)).17 We reaffirm this formulation, which requires that the degree of prejudice resulting from instruction error be evaluated in the total context of the events at trial. As we have often emphasized: "[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp v. Naughten, supra, at 146-147, 94 S.Ct., at 400 (citations omitted). Moreover, "a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction." Id., at 147, 94 S.Ct., at 400. 42 We now apply these established standards to Frady's case. IV 43 Frady bases his claim that he was prejudiced on his assertion that the jury was not given an adequate opportunity to consider a manslaughter verdict. According to Frady, the trial court's erroneous instructions relieved the Government of the burden of proving malice, an element of the crime of murder, beyond a reasonable doubt, so that, as Frady would have it, his conviction must be overturned.18 44 So stated, Frady's claim of actual prejudice has validity only if an error in the instructions concerning an element of the crime charged amounts to prejudice per se, regardless of the particular circumstances of the individual case. Our precedents, however, hold otherwise. Contrary to Frady's suggestion, he must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions. 45 This Frady has failed to do. At the outset, we emphasize that this would be a different case had Frady brought before the District Court affirmative evidence indicating that he had been convicted wrongly of a crime of which he was innocent. But Frady, it must be remembered, did not assert at trial that he and Richard Gordon beat Thomas Bennett to death without malice. Instead, Frady claimed he had nothing whatever to do with the crime. The evidence, however, was overwhelming, and Frady promptly abandoned that theory on appeal. Frady I, 121 U.S.App.D.C., at 95, 348 F.2d, at 101. Since that time, Frady has never presented colorable evidence, even from his own testimony, indicating such justification, mitigation, or excuse that would reduce his crime from murder to manslaughter. 46 Indeed, the evidence in the record compels the conclusion that there was, as the dissenters from the denial of a rehearing en banc below put it, "malice aplenty." 204 U.S.App.D.C., at 245, 636 F.2d, at 517. Frady and Gordon twice reconnoitered their victim's house on the afternoon and evening of the murder. Just before the killing, they were overheard in a conversation suggesting that they "were assassins hired by George Bennett to do away with his brother." Frady I, supra, at 97, 348 F.2d, at 103 (Miller, J., concurring in part and dissenting in part). They brought gloves to the scene of the murder which they discarded during their flight from the police, and the murder weapon bore no fingerprints. Finally, there was the unspeakable brutality of the killing itself. 47 Indeed, the evidence of malice was strong enough that the 10 judges closest to the case—the trial judge and the 9 judges who 17 years ago decided Frady's appeal en banc—were at that time unanimous in finding the record at least sufficient to sustain a conviction for second-degree murder—a killing with malice. Nine of the ten judges went further, finding the evidence sufficient to sustain the jury's verdict that Frady not only killed with malice, but with premeditated and deliberate intent. 48 We conclude that the strong uncontradicted evidence of malice in the record, coupled with Frady's utter failure to come forward with a colorable claim that he acted without malice, disposes of his contention that he suffered such actual prejudice that reversal of his conviction 19 years later could be justified. We perceive no risk of a fundamental miscarriage of justice in this case. 49 Should any doubt remain, our examination of the jury instructions shows no substantial likelihood that the same jury that found Frady guilty of first-degree murder would have concluded, if only the malice instructions had been better framed, that his crime was only manslaughter. The jury, after all, did not merely find Frady guilty of second-degree murder, which requires only malice. It found Frady guilty of first-degree deliberate and premeditated—murder. 50 To see precisely what the jury had to conclude to make this finding, it is necessary to examine the instructions the trial judge gave the jury on the meaning of premeditation and deliberation: "[P]remeditation is the formation of the intent or plan to kill, the formation of a positive design to kill. It must have been considered by the defendants. 51 "It is your duty to determine from the facts and circumstances in this case as you find them surrounding the killing whether reflection and consideration amounting to deliberation occurred. If so, even though it be of exceedingly brief duration, that is sufficient, because it is the fact of deliberation rather than the length of time it continued that is important. Although some appreciable period of time must have elapsed during which the defendants deliberated in order for this element to be established, no particular length of time is necessary for deliberation; and it does not require the lapse of days or hours or even of minutes." Tr. in No. 402-63 (DC), p. 806, reprinted at App. 28. 52 By contrast, to have found Frady guilty of manslaughter the jury would have had to find the presence of the kind of excuse, justification, or mitigation that reduces a killing from murder to manslaughter. As the trial court put it: 53 "The element [sic ] the Government must prove in order for you to find the defendants guilty of manslaughter are: 54 "One, that the defendants inflicted a wound or wounds from which the deceased died, these being inflicted in the District of Columbia. 55 "Two, that the defendants struck the deceased in sudden passion, without malice, that the defendants' sudden passion was aroused by adequate provocation. When I say sudden passion, I mean to include rage, resentment, anger, terror and fear; so when I use the expression 'sudden passion.' [sic ] I include all of these. 56 "Provacation, [sic ] in order to bring a homicide under the offense of manslaughter, must be adequate, must be such as might naturally induce a reasonable man in anger of the moment to commit the deed. It must be such provocation would [sic ] have like effect upon the mind of a reasonable or average man causing him to lose his self-control. 57 "In addition to the great provocation, there must be passion and hot blood caused by that provocation. Mere words, however, no matter how insulting, offensive or abusive, are not adequate to induce [sic ] a homicide although committed in passion, provoked, as I have explained, from murder to manslaughter." Id., at 809, reprinted at App. 30. 58 Plainly, a rational jury that believed Frady had formed a "plan to kill . . . a positive design to kill" with "reflection and consideration amounting to deliberation," could not also have believed that he acted in "sudden passion . . . aroused by adequate provocation . . . causing him to lose his self-control." We conclude that, whatever it may wrongly have believed malice to be, Frady's jury would not have found passion and provocation, especially since Frady presented no evidence whatever of mitigating circumstances, but instead defended by disclaiming any involvement with the killing.19 Surely there is no substantial likelihood the erroneous malice instructions prejudiced Frady's chances with the jury. V 59 In sum, Frady has fallen far short of meeting his burden of showing that he has suffered the degree of actual prejudice necessary to overcome society's justified interests in the finality of criminal judgments. Therefore, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. 60 So ordered. 61 THE CHIEF JUSTICE and Justice MARSHALL took no part in the consideration or decision of this case. 62 Justice STEVENS, concurring. 63 Although my view of the relevance of the cause for counsel's failure to object to a jury instruction is significantly different from the Court's, see Wainwright v. Sykes, 433 U.S. 72, 94-97, 97 S.Ct. 2497, 2510-2511, 53 L.Ed.2d 594 (STEVENS, J., concurring); Rose v. Lundy, 455 U.S. 509, 538, 102 S.Ct. 1198, 1213, 71 L.Ed.2d 379 (STEVENS, J., dissenting); Engle v. Isaac, 456 U.S. 107, 136-137, n. 1, 102 S.Ct. 1558, 1576 n. 1, 71 L.Ed.2d 783 (STEVENS, J., concurring in part and dissenting in part), I have joined the Court's opinion in this case because it properly focuses on the character of the prejudice to determine whether collateral relief is appropriate. 64 Justice BLACKMUN, concurring in the judgment. 65 Like Justice BRENNAN, I believe that the plain-error rule of Federal Rule of Criminal Procedure 52(b) has some applicability in a § 2255 proceeding. In my view, recognizing a federal court's discretion to redress plain error on collateral review neither nullifies the cause-and-prejudice requirement articulated in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), nor disserves the policies underlying that requirement. 66 Despite the Court's assertions that Rule 52(b) was intended for use only on direct appeal and that the Court of Appeals ignored "long-established contrary authority," ante, at 164, I find nothing in the Rule's seemingly broad language supporting the Court's restriction of its scope. In fact, the plain-error doctrine is specifically made applicable to all stages of all criminal proceedings, which, as the dissenting opinion points out, include the collateral review procedures of § 2255. See post, at 179-180, 182 and nn. 5, 6. Even more striking, § 2255 Rule 12 explicitly permits a federal court to "apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure, whichever it deems most appropriate, to motions filed under these rules."* 67 The cause-and-prejudice standard of Wainwright v. Sykes, supra, is premised on the notion that contemporaneous-objection rules are entitled to respect—in the interests of preserving comity and effecting the administrative goals such rules are designed to serve. See 433 U.S., at 88-90, 97 S.Ct., at 2507-2508. As the Court concedes, considerations of comity are not at issue here. Seeante, at 166. The second objective of the cause-and-prejudice requirement—to enforce contemporaneous-objection rules and, in particular, to ensure finality—is, in my view, similarly irrelevant where, as the Court of Appeals found here, an explicit exception to the contemporaneous-objection rule is applicable. Giving effect to an express exception to a contemporaneous-objection rule is hardly inconsistent with that rule. Where a jurisdiction has established an exception to its contemporaneous-objection requirement and a prisoner's petition for collateral review falls within that exception, I see no need for the prisoner to prove "cause" for his failure to comply with a rule that is inapplicable in his case. 68 In the federal courts, the plain-error doctrine constitutes an exception to Federal Rule of Criminal Procedure 30's requirement that defendants make timely objections to instructions. If the Court of Appeals properly characterized the errors identified by respondent as plain error, it correctly refused to require him to make the cause-and-prejudice showing described in Wainwright v. Sykes, supra. 69 This approach does not, as the Court charges, "affor[d] federal prisoners a preferred status when they seek postconviction relief." Ante, at 166. The Court has long recognized that the Wainwright v. Sykes standard need not be met where a State has declined to enforce its own contemporaneous-objection rule. See, e.g., Ulster County Court v. Allen, 442 U.S. 140, 148-154, 99 S.Ct. 2213, 2220-2223, 60 L.Ed.2d 777 (1979); Wainwright v. Sykes, 433 U.S., at 87, 97 S.Ct., at 2506; Francis v. Henderson, 425 U.S. 536, 542, n. 5, 96 S.Ct. 1708, 1711, n. 5, 48 L.Ed.2d 149 (1976). Similarly, the cause-and-prejudice standard should not be a barrier to relief when the plain-error exception to the federal contemporaneous-objection requirement is applicable. The federal contemporaneous-objection rules may differ from those of the States, and the applicability of the Wainwright v. Sykes standard therefore may vary according to the contours of the particular jurisdiction's contemporaneous-objection requirement. But that variance does not improperly distinguish between federal and state prisoners, just as respecting any differences between the contemporaneous-objection rules of two States creates no impermissible distinction. In fact, it is the Court's approach—refusing to give effect to the plain-error exception to the federal contemporaneous-objection rule, while recognizing exceptions to the analogous state rules—that gives some prisoners a "preferred status." 70 Similarly, my approach does not afford prisoners "a second appeal," ante, at 164, thus sacrificing the interest in finality of convictions. As the dissenting opinion observes, acknowledging the applicability of Rule 52(b) in § 2255 proceedings does not merge direct appeal and collateral review. See post, at 180-181, n. 2; see also United States v. Addonizio, 442 U.S. 178, 186, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979); Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977). 71 Because I agree with the Court, however, that respondent has not demonstrated that the erroneous jury instructions of which he complains "so infected the entire trial that the resulting conviction violates due process," Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973), I conclude that the Court of Appeals erred in holding that respondent was entitled to relief under Rule 52(b). Accordingly, I concur in the reversal of the judgment of the Court of Appeals. 72 Justice BRENNAN, dissenting. 73 I have frequently dissented from this Court's progressive emasculation of collateral review of criminal convictions. E.g., Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783; Sumner v. Mata, 449 U.S. 539, 552, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981); Wainwright v. Sykes, 433 U.S. 72, 99, 97 S.Ct. 2497, 2512, 53 L.Ed.2d 594 (1977); Stone v. Powell, 428 U.S. 465, 502, 96 S.Ct. 3037, 3056, 49 L.Ed.2d 1067 (1976); see also Davis v. United States, 411 U.S. 233, 245, 93 S.Ct. 1577, 1584, 36 L.Ed.2d 216 (1973) (MARSHALL, J., dissenting). Today the Court takes a further step down this unfortunate path by declaring the plain-error standard of the Federal Rules of Criminal Procedure inapplicable to petitions for relief under 28 U.S.C. § 2255. In so doing, the Court does not pause to consider the nature of the plain-error Rule. Nor does the Court consider the criminal character of a proceeding under § 2255 as distinguished from the civil character of a proceeding under 28 U.S.C. § 2254. Because the Court's decision is obviously inconsistent with both, I dissent. 74 * A. 75 The Court declares that the plain-error Rule, Fed.Rule Crim.Proc. 52(b), was intended for use only on direct appeal and is "out of place" when the prisoner is collaterally attacking his conviction. Ante, at 164. But the power to notice plain error at any stage of a criminal proceeding is fundamental to the courts' obligation to correct substantial miscarriages of justice. That obligation qualifies what the Court characterizes as our entitlement to presume that the defendant has been fairly and finally convicted. Ibid. 76 The Court correctly points out, ante at 163, n. 13, that Rule 52(b)1 was merely a restatement of existing law. The role of the plain-error doctrine has always been to empower courts, especially in criminal cases, to correct errors that seriously affect the "fairness, integrity or public reputation of judicial proceedings." United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936). Significantly, although some of the Rules of Criminal Procedure appear under headings such as "Preliminary Proceedings," "Trial," or "Appeal," Rule 52(b) is one of the "General Provisions" of the Rules, applicable to all stages of all criminal proceedings in federal courts. See Fed.Rule Crim.Proc. 1. 77 The Rule has been relied upon to correct errors that may have seriously prejudiced a possibly innocent defendant, see, e.g., United States v. Mann, 557 F.2d 1211, 1215-1216 (CA5 1977), and errors that severely undermine the integrity of the judicial proceeding, see, e.g., United States v. Vaughan, 443 F.2d 92, 94-95 (CA2 1971). The plain-error Rule mitigates the harsh impact of the adversarial system, under which the defendant is generally bound by the conduct of his lawyer, by providing relief in exceptional cases despite the lawyer's failure to object at trial. The Rule thus "has a salutary effect on the prosecution's conduct of the trial. If the intelligent prosecutor wishes to guard against the possibility of reversible error, he cannot rely on the incompetence or inexperience of his adversary but, on the contrary, must often intervene to protect the defendant from the mistakes of counsel." 8B J. Moore, Moore's Federal Practice ¶ 52.02[2] (1981). 78 The Rule does not undermine our interest in the finality of criminal convictions. Rule 52(b) permits, rather than directs, the courts to notice plain error; the power to recognize plain error is one that the courts are admonished to exercise cautiously, see United States v. Diez, 515 F.2d 892, 896 (CA5 1975), and resort to only in "exceptional circumstances," Atkinson, supra, 297 U.S. at 160, 56 S.Ct. at 392. Yet, it is this power that the Court holds Congress intended to deny federal courts reviewing actions brought under § 2255. But the text and history of the Federal Rules of Criminal Procedure, § 2255, and the special Rules governing § 2255 actions make clear that the Court errs.2 B 79 The Court's assumption that Rule 52(b) is inapplicable to proceedings under § 2255 is built upon dictum in Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977), which suggests that the plain-error Rule is inapplicable in a habeas corpus action under 28 U.S.C. § 2254. Even if I were to agree, and I do not, that the plain-error doctrine has no role in § 2254 actions, I could not accept the Court's analysis because it fails to consider the explicit congressional distinction between § 2254,3 a civil collateral review procedure for state prisoners, and § 2255,4 a criminal collateral review procedure for federal prisoners. 80 In enacting 28 U.S.C. §§ 2254 and 2255, Congress could not have been more explicit: Section 2254 provided for a separate civil action, but a § 2255 motion was "a further step in the criminal case in which petitioner is sentenced." S.Rep.No.1526, 80th Cong., 2d Sess., 2 (1948).5 This was reaffirmed in the 28 U.S.C. § 2254 Rules and the 28 U.S.C. § 2255 Rules, approved by Congress in 1976. 90 Stat. 1334. The Advisory Committee's Notes for the § 2255 Rules emphasize repeatedly that a proceeding under § 2255 is a continuation of the criminal trial and not a civil proceeding. Advisory Committee's Notes to § 2255 Rules 1, 3, 11, 12, 28 U.S.C., pp. 280, 282, 287.6 81 Section 2255 Rule 12 directs that "[i]f no procedure is specifically prescribed by these rules, the district court [considering a motion under § 2255] may proceed in any lawful manner not inconsistent with these rules, or any applicable statute, and may apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure, whichever it deems most appropriate, to motions filed under these rules." (Emphasis added.) This is in contrast to the parallel Rule governing motions under § 2254, which provides: "The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with [the Rules governing § 2254 cases], may be applied, when appropriate. . . ." 28 U.S.C. § 2254 Rule 11 (emphasis added). The Court today blurs the distinction between § 2255 and § 2254, ignores Congress' insistence that a § 2255 motion is a continuation of the criminal trial, and makes no mention of Congress' express authorization to apply the Federal Rules of Criminal Procedure. 82 The Court suggests that to apply the plain-error Rule in § 2255 proceedings and not in § 2254 habeas actions would grant federal prisoners a "preferred" status. Ante, at 166. To the contrary, to bar federal judges from recognizing plain errors on collateral review is to bind the federal prisoners more tightly than their state counterparts to this Court's procedural barriers. State-court judges may have power to recognize plain error in collateral review of state-court convictions, see, e.g., Nelson v. State, 208 So.2d 506, 509 (Fla.App.1968); People v. Weathers, 83 Ill.App.3d 451, 453, 39 Ill.Dec. 420, 422, 404 N.E.2d 1011, 1012 (1980); Wright v. State, 33 Md.App. 68, 70, 363 A.2d 520, 522 (1976); Riggs v. State, 50 Or.App. 109, 114, 622 P.2d 327, 329 (1981); indeed, by waiving a procedural bar, state courts can permit the petitioner collateral review in federal court as well. See Mullaney v. Wilbur, 421 U.S. 684, 688, n. 7, 95 S.Ct. 1881, 1884, n. 7, 44 L.Ed.2d 508 (1975). But the federal prisoner's only source of respite from this Court's "airtight system of [procedural] forfeitures," Wainwright v. Sykes, 433 U.S., at 101, 97 S.Ct., at 2513 (BRENNAN, J., dissenting), lies with the discretionary exercise of the federal courts' power. The Court's ruling does not establish parity between federal and state prisoners; rather it unduly restricts the power of the federal courts to remedy substantial injustice. 83 As the Court notes, ante, at 166, the concerns of comity which underlie many of the opinions establishing obstacles to § 2254 review of state confinement, e.g., Sumner v. Mata, 449 U.S., at 550, 101 S.Ct., at 770; Stone v. Powell, 428 U.S., at 491, n. 31, 96 S.Ct., at 3051, n. 31; Francis v. Henderson, 425 U.S. 536, 541, 96 S.Ct. 1708, 1711, 48 L.Ed.2d 149 (1976), are absent here. If it is true, as the Court has repeatedly asserted, that the tensions inherent in federal-court review of state-court convictions require that substantive rights yield at times to procedural rules, no similar tension exists in a § 2255 proceeding. Under § 2255, the prisoner is directed back to the same court that first convicted him. The plain-error doctrine merely allows federal courts the discretion common to most courts to waive procedural defaults where justice requires. 84 I might add that this is not the first instance in which the Court has obscured the distinction between § 2254 and § 2255. In Francis v. Henderson, supra, and then in Wainwright v. Sykes, supra, the Court ignored the distinction between § 2255 and § 2254 in order to apply a Federal Rule of Criminal Procedure to the purely civil § 2254 proceeding. Now, ironically, the Court again obscures the distinction this time to avoid application of a Criminal Procedure Rule to a criminal § 2255 proceeding. With each obfuscation of the distinction, between § 2254 and § 2255, the Court has erected a new "procedural hurd[le]," see Engle v. Isaac, 456 U.S., at 136, 102 S.Ct., at 1576 (STEVENS, J., concurring in part and dissenting in part), for prisoners seeking collateral review of their convictions. Indeed, the "cause and prejudice" standard, which the Court today decides pre-empts the plain-error Rule, and which I continue to view as antithetical to this Court's duty to ensure that " 'federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review,' "7 has its origin in the Federal Rules of Criminal Procedure that the Court now finds inapplicable. As the cause-and-prejudice standard has taken on its talismanic role in the law of habeas corpus only through the Court's past application of the principles of the Federal Rules of Criminal Procedure in both § 2254 and § 2255 actions, perhaps a brief review of this history is in order. 85 The "cause and prejudice" standard originated in Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973). In Davis, the Court applied Rule 12(b)(2) of the Federal Rules of Criminal Procedure8 to hold that a federal prisoner seeking collateral review under § 2255 had waived his objection to the composition of the grand jury. Relying on the exception for "cause shown" in Rule 12(b)(2), and Shotwell Manufacturing Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963) (a case of direct appeal from a federal conviction in which the Court construed the cause exception to Rule 12(b)(2) as encompassing an inquiry into prejudice), the Court divined a rule for § 2255 challenges to the composition of the grand jury: such claims were cognizable only if the prisoner showed both "cause" and "prejudice." Davis v. United States, supra, 411 U.S., at 243-245, 93 S.Ct., at 1583-1584. 86 On the foundation of Davis, the Court has built an incredible "house of cards whose foundation has escaped any systematic inspection." Wainwright v. Sykes, supra, 433 U.S., at 100, n. 1, 97 S.Ct., at 2513, n. 1 (BRENNAN, J., dissenting). Notwithstanding the lack of any evidence of congressional purpose to apply the Federal Rules of Criminal Procedure except in § 2255 proceedings,9 Francis v. Henderson, supra, applied the Davis "cause and prejudice" standard to a state prisoner who, in a § 2254 proceeding, raised a constitutional challenge to the composition of the grand jury. 425 U.S., at 541-542, 96 S.Ct., at 1711; see id., at 548, 96 S.Ct., at 1714 (BRENNAN, J., dissenting). Building upon this strained foundation, Wainwright v. Sykes, relied on Davis and Francis to declare the "cause and prejudice" standard applicable to all procedural defaults occurring during the trial of a state criminal defendant. Finally, coming full circle, the Court today relies on this "cause and prejudice" standard to pre-empt the plain-error standard of Rule 52(b). 87 Francis and Wainwright held applicable to a civil proceeding an inapplicable Rule of Criminal Procedure in order to defeat substantial claims of state prisoners. Today the Court excludes the applicability in a criminal proceeding of a Rule of Criminal Procedure plainly intended by Congress to be available to federal prisoners. Any consistency in these decisions lies in their announcement that even in the teeth of clear congressional direction to the contrary, this Court will strain to subordinate a prisoner's interest in substantial justice to a supposed government interest in finality. II 88 The Court's determination to ride roughshod over congressional intention in order to curtail the collateral remedies of prisoners, state and federal, is evident in its passing up the opportunity to decide this case on the ground offered by the Government, Brief for United States 41, n. 34, and adopted by Justice BLACKMUN in his opinion concurring in the judgment, that, in any event, petitioner did not show that the instructions constituted plain error affecting his substantial rights. That admittedly is a close question on this record.10 89 The Government argues that because the jury could not have found premeditation without also inferring malice, the unobjected to instructions did not affect "substantial rights." A plausible counter to this argument occurs to me in that the trial court instructed the jury that malice and premeditation were two separate elements of the crime, App. 26-29. The premeditation instruction did not, in terms, require the jury to find that the defendant acted without such provocation as would preclude a finding of malice. Yet, if the Court had concluded that there was not "plain" error, it might be difficult to support a dissent from that conclusion, given the particular facts of this case. As the Court did not base it's holding upon this ground, I dissent. 1 Brief for Appellant in No. 79-2356 (CADC), p. 12 (pro se ). 2 The sole dissenter, Judge J. Skelly Wright, noted that under the law of the District of Columbia an "intent to inflict serious injury, unaccompanied by premeditation, is sufficient for second degree murder, but first degree murder requires, in addition to premeditation, the specific intent to kill." Frady I, 121 U.S.App.D.C., at 91, n. 13, 348 F.2d, at 97, n. 13 (dissenting in part and concurring in part) (citations omitted). Because Judge Wright believed the evidence sufficient only to sustain a verdict that Frady deliberately intended to injure Thomas Bennett, Judge Wright would have reversed Frady's conviction for first-degree murder. Id., at 91, 348 F.2d, at 97. 3 In dissent, THE CHIEF JUSTICE (who was then serving as a Circuit Judge on the Court of Appeals) characterized that view as having "no basis without an assumption that these jurors were illiterate morons." Id., at 107, 348 F.2d, at 113 (concurring in part and dissenting in part). 4 As summarized by the Court of Appeals, 204 U.S.App.D.C. 234, 236, n. 2, 636 F.2d 506, 508, n. 2 (1980), Frady filed four motions to vacate or reduce his sentence in 1965, and one each in 1974, 1975, 1976, and 1978. This last motion resulted in a Court of Appeals decision directing that Frady's separate sentences for robbery and murder run concurrently rather than consecutively. United States v. Frady, 197 U.S.App.D.C. 69, 607 F.2d 383 (1979) (Frady II). 5 Section 2255 provides in pertinent part: "A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 6 Frady cited Belton v. United States, 127 U.S.App.D.C. 201, 204-205, 382 F.2d 150, 153-154 (1967); Green v. United States, 132 U.S.App.D.C. 98, 99-100, 405 F.2d 1368, 1369-1370 (1968) (Green I); and United States v. Wharton, 139 U.S.App.D.C. 293, 297-298, 433 F.2d 451, 455-456 (1970). The Government does not contest Frady's assertion that the jury instructions were erroneous as determined by these later rulings. 7 See, e.g., Fryer v. United States, 93 U.S.App.D.C. 34, 38, 207 F.2d 134, 138 (manslaughter is "the unlawful killing of a human being without malice") (emphasis deleted), cert. denied, 346 U.S. 885, 74 S.Ct. 135, 98 L.Ed. 389 (1953); United States v. Wharton, supra, at 296, 433 F.2d, at 454 (malice is "the sole element differentiating murder from manslaughter"). Frady also challenged the trial judge's instruction that "[a] person is presumed to intend the natural [and] probable consequences of his act." See 204 U.S.App.D.C., at 237, n. 7, 636 F.2d, at 509, n. 7. Frady argued that this instruction was unconstitutional under our decision in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), in which we held that a similar instruction that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts" might impermissibly lead a reasonable juror to believe the presumption is conclusive. The Court of Appeals refrained from deciding this issue, however, so we do not consider it here. 8 As we said in Fisher v. United States, 328 U.S. 463, 476, 66 S.Ct. 1318, 1324, 90 L.Ed. 1382 (1946): "Matters relating to law enforcement in the District [of Columbia] are entrusted to the courts of the District. Our policy is not to interfere with the local rules of law which they fashion, save in exceptional situations where egregious error has been committed." 9 Frady, of course, does not argue that we do not have jurisdiction under 28 U.S.C. § 1254(1) to hear this case, only that we should, in our discretion, refrain from exercising it. 10 We note that Frady's winning pro se brief to the court below, though extensively discussing the general federal law regarding the proper disposition of § 2255 motions, nowhere suggested that special local rules should be applied to the case. 11 The Court of Appeals for the District of Columbia Circuit has reached the same conclusion on an analogous issue. See United States v. Brown, 157 U.S.App.D.C. 311, 483 F.2d 1314 (1973) (federal, not local, bail law applies to an appellant convicted of a local offense in federal court, despite the fact that the harsher local law applies to those convicted of the same offense in the local courts). 12 We mention in passing that it is unclear that Frady would face law more favorable to his cause were his § 2255 motion treated as though it were a local § 23-110 motion. The highest local court, the District of Columbia Court of Appeals, has written that "[o]ur rule, D.C.Code 1973, § 23-110, is nearly identical and functionally equivalent to § 2255, and we may therefore rely on cases construing the federal rule." Butler v. United States, 388 A.2d 883, 886, n. 5 (1978). We express no view on the similarities between § 23-110 and § 2255, however. As Frady has reminded us: "The administration of criminal law in matters not affected by constitutional limitations or a general federal law is a matter peculiarly of local concern." Fisher v. United States, 328 U.S., at 476, 66 S.Ct., at 1324. 13 The Rule merely restated existing law. See Advisory Committee's Notes on Fed.Rule Crim.Proc. 52(b), 18 U.S.C.App., p. 1478, citing Wiborg v. United States, 163 U.S. 632, 658, 16 S.Ct. 1127, 1137, 41 L.Ed. 289 (1896) ("although this question was not properly raised, yet if a plain error was committed in a matter so absolutely vital to defendants, we feel ourselves at liberty to correct it"). See also United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936) ("In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings"). 14 The Courts of Appeals long have recognized that the power granted them by Rule 52(b) is to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result. See, e.g., United States v. Gerald, 624 F.2d 1291, 1299 (CA5 1980) ("Plain error is error which is 'both obvious and substantial'. . . . The plain error rule is not a run-of-the-mill remedy. The intention of the rule is to serve the ends of justice; therefore it is invoked 'only in exceptional circumstances [where necessary] to avoid a miscarriage of justice' " (citations omitted)), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981); United States v. DiBenedetto, 542 F.2d 490, 494 (CA8 1976) ("This court, along with courts in general, have applied the plain error rule sparingly and only in situations where it is necessary to do so to prevent a great miscarriage of justice" (citations omitted)). 15 In the present case we address only the proper standard to be used by a district court engaged pursuant to § 2255 in the collateral review of the original criminal trial. We of course do not hold that the "plain error" standard cannot be applied by a court of appeals on direct review of a district court's conduct of the § 2255 hearing itself. Justice BRENNAN in his dissenting opinion, post, at 182-183, and Justice BLACKMUN in his opinion concurring in the judgment, post, at 176, and n., point out that § 2255 Rule 12 directs that "[i]f no procedure is specifically prescribed by these rules, the district court may proceed in any lawful manner not inconsistent with these rules, or any applicable statute, and may apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure, whichever it deems more appropriate, to motions filed under these rules." Justices BRENNAN and BLACKMUN contend that the procedural directive of § 2255 Rule 12 indicates that the "plain error" standard of Rule 52(b) of the Federal Rules of Criminal Procedure applies to the district court's collateral review of the original trial. They do not point to any evidence that § 2255 Rule 12 was intended to have such a surprising effect, however. By approving § 2255 Rule 12, we believe Congress intended merely to authorize a court in its discretion to use the Federal Rules of Criminal Procedure to regulate the conduct of a § 2255 proceeding. A court of appeals, for example, could invoke the "plain error" standard on direct review of a district court's conduct of a § 2255 hearing, if the court of appeals found a sufficiently egregious error in the § 2255 proceeding itself that had not been brought to the attention of the district court. Thus, as § 2255 Rule 12 suggests, under proper circumstances Rule 52(b) can play a role in § 2255 proceedings. We also note that, contrary to the suggestions in the dissenting opinion, § 2255 Rule 12 does not mandate by its own force the use of any particular Rule of Civil or Criminal Procedure. The Advisory Committee's Note to § 2255 Rule 12, 28 U.S.C., p. 287, refers the reader "[f]or discussion" of possible restrictions on the use of the Rules of Procedure to the Note to the analogous provision governing proceedings under 28 U.S.C. § 2254, § 2254 Rule 11 (which provides: "The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules"). The Advisory Committee's Note to § 2254 Rule 11, 28 U.S.C., p. 275, explains that the Rule "allow[s] the court considering the petition to use any of the rules of civil procedure (unless inconsistent with these rules of habeas corpus) when in its discretion the court decides they are appropriate under the circumstances of the particular case. The court does not have to rigidly apply rules which would be inconsistent or inequitable in the overall framework of habeas corpus." As we have explained in the text above, use of the "plain error" standard is "inconsistent or inequitable in the overall framework" of collateral review of federal criminal convictions under § 2255. 16 Frady claims that he had "cause" not to object at trial or on appeal because those proceedings occurred before the decisions of the Court of Appeals disapproving the erroneous instructions. Any objection, he asserts, therefore would have been futile. In this regard, the Government points out that the first case to reject the jury instructions Frady now attacks was decided only two years after Frady's appeal was decided. Belton v. United States, 127 U.S.App.D.C. 201, 382 F.2d 150 (1967). The Belton court seemed to consider the law as clearcut, and attributed the erroneous instruction to inadvertence by the trial judge, stating: "We have little doubt that if objection had been made this slip of the tongue by a capable trial judge—assuming the reporter heard him right—would have been corrected." Id., at 205, 382 F.2d, at 154. Likewise, in Green I, the court asserted that the trial court had given the erroneous instruction "no doubt inadvertently." 132 U.S.App.D.C., at 100, 405 F.2d, at 1370. In light of these decisions, the Government argues here that "[i]t is difficult to believe that it would have been futile in 1965 for respondent to present his current objections to the jury instructions to the court of appeals that decided Belton in 1967 and Green I in 1968." Brief for United States 33. See Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783, in which we addressed a similar argument. 17 Kibbe involved a habeas petition brought by a state, not a federal, convict. As we noted supra, at 166, however, the federal interest in finality is as great as the States', and the relevant federal constitutional strictures apply with equal force to both jurisdictions. 18 At the time Frady was tried, murder in the first degree was defined (and still is) as a killing committed "purposely" "of deliberate and premeditated malice." D.C.Code § 22-2401 (1981). Murder in the second degree was defined as a killing (other than a first-degree murder) with "malice aforethought." § 22-2403. Culpable killings without malice were defined to be manslaughter. See n. 7, supra. The District of Columbia statutes defining murder in the first and second degree were first passed at the turn of the century, Act of Mar. 3, 1901, 31 Stat. 1321, ch. 854, §§ 798, 800, as a codification of the common-law definitions, which they did not displace. See O'Connor v. United States, 399 A.2d 21 (D.C.App.1979); Hamilton v. United States, 26 App.D.C. 382, 385 (1905). The definition of manslaughter was never codified, but remains a matter of common law. See United States v. Pender, 309 A.2d 492 (D.C.App.1973). The significance of the various degrees of homicide under the law of the District was summarized by the Court of Appeals in 1967: "In homespun terminology, intentional murder is in the first degree if committed in cold blood, and is murder in the second degree if committed on impulse or in the sudden heat of passion. . . . [A] homicide conceived in passion constitutes murder in the first degree only if the jury is convinced beyond a reasonable doubt that there was an appreciable time after the design was conceived and that in this interval there was a further thought, and a turning over in the mind—and not a mere persistence of the initial impulse of passion. ". . . An unlawful killing in the sudden heat of passion whether produced by rage, resentment, anger, terror or fear—is reduced from murder to manslaughter only if there was adequate provocation, such as might naturally induce a reasonable man in the passion of the moment to lose self-control and commit the act on impulse and without reflection." Austin v. United States, 127 U.S.App.D.C. 180, 188, 382 F.2d 129, 137 (citations omitted). The policy basis for the distinction between first-degree murder and other homicides was explained in Bullock v. United States, 74 App.D.C. 220, 221, 122 F.2d 213, 214 (1941): "Statutes like ours, which distinguish deliberate and premeditated murder from other murder, reflect a belief that one who meditates an intent to kill and then deliberately executes it is more dangerous, more culpable or less capable of reformation than one who kills on sudden impulse; or that the prospect of the death penalty is more likely to deter men from deliberate than from impulsive murder. The deliberate killer is guilty of first degree murder; the impulsive killer is not." 19 Nor, on the facts of this case, would a finding of a premeditated and deliberate intent to kill be consistent as a matter of law with an absence of malice. See n. 18, supra. We are not alone in finding that an erroneous malice instruction is not necessarily cause for reversal. Even on direct appeal rather than on collateral attack, the highest court in the District of Columbia has refused to reverse convictions obtained after the use of precisely the same instructions of which Frady complains here. For example, in Belton v. United States, 127 U.S.App.D.C. 201, 382 F.2d 150 (1967), the first decision expressly to disapprove the instruction that the law infers malice from the use of a deadly weapon, the court affirmed a first-degree murder conviction with the observation that a "jury inferring premeditation and deliberation could hardly have failed to infer malice." Id., at 206, 382 F.2d, at 155. Similarly, in Howard v. United States, 128 U.S.App.D.C. 336, 389 F.2d 287 (1967), a second-degree murder conviction was affirmed on direct appeal, although the same defective instruction had been given. In two cases in which the defendants put malice in issue by raising self-defense claims at trial, however, the court, on direct appeal, reversed murder convictions obtained through the use of the faulty instructions. Green I, 132 U.S.App.D.C. 98, 405 F.2d 1368 (1968); United States v. Wharton, 139 U.S.App.D.C. 293, 433 F.2d 451 (1970). * Although § 2255 Rule 12 does not "mandate by its own force the use of any particular Rule of Civil or Criminal Procedure," ante, at 167, n. 15, it does afford a federal court discretion in determining whether to apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure. The Court's extended discussion, in the same footnote, of the Advisory Committee's Note to § 2254 Rule 11, is beside the point. The Advisory Committee's Note to § 2255 Rule 12 expressly observes that Rule 12 "differs" from § 2254 Rule 11 in that the former "includes the Federal Rules of Criminal Procedure as well as the civil." 28 U.S.C., p. 287. And the note to Rule 12 apparently refers to the note accompanying § 2254 Rule 11 "[f]or discussion" only of "the restrictions in Fed.R.Civ.P. 81(a)(2). . . ." Even if the note to § 2254 Rule 11 is relevant to our decision in this case, I do not subscribe to the Court's conclusion that the plain-error doctrine is " 'inconsistent or inequitable in the overall framework' " of collateral review pursuant to § 2255. See ante, at 167-168, n. 15, quoting Advisory Committee's Note to § 2254 Rule 11. 1 Rule 52(b) provides: "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Although the Rule applies to "plain errors or defects affecting substantial rights," one commentator has suggested that the disjunctive form of the Rule is only a means of distinguishing between "errors" (e.g., exclusion of evidence) and "defects" (e.g., defective pleading), and that in either event plain error applies only to errors affecting substantial rights. 8B J. Moore, Moore's Federal Practice ¶ 52.02[2] (1981). 2 The Court suggests that allowing federal courts to recognize plain error on collateral review would obscure the differences between collateral review and appeal. Ante, at 165. But the significant differences between § 2255 and direct appeal remain unaffected by the application of Rule 52(b) to § 2255 actions. Even if an objection is properly preserved, an error which can be raised on appeal is not cognizable under § 2255 unless it is a constitutional violation or an error of law or fact of such "fundamental character" that it "renders the entire proceeding irregular and invalid." United States v. Addonizio, 442 U.S. 178, 186, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979). See also Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962). 3 Title 28 U.S.C. § 2254 provides in pertinent part: "State custody; remedies in State courts "(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 4 Title 28 U.S.C. § 2255 provides in pertinent part: "Federal Custody; remedies on motion attacking sentence: "A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack may move the court which imposed the sentence to vacate, set aside or correct the sentence. "A motion for such relief may be made at any time. * * * * * "An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention." 5 Section 2255 was intended to be in the nature of, but much broader than, the ancient writ of coram nobis. Unlike the writ of habeas corpus provided for state prisoners under § 2254, § 2255 directs the prisoner back to the court that sentenced him. The habeas writ remains available to federal prisoners where the motion provided under § 2255 is for some reason inadequate. S.Rep.No.1526, 80th Cong., 2d Sess., 2 (1948). See also H.R.Rep.No.308, 80th Cong., 1st Sess., A180 (1947). See generally United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952). 6 The Advisory Committee's Note to Rule 1 states in pertinent part: "Whereas sections 2241-2254 (dealing with federal habeas for those in state custody) speak of the district court judge 'issuing the writ' as the operative remedy, section 2255 provides that, if the judge finds the movant's assertions to be meritorious, he 'shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.' This is possible because a motion under § 2255 is a further step in the movant's criminal case and not a separate civil action, as appears from the legislative history of section 2 of S. 20, 80th Congress, the provisions of which were incorporated by the same Congress in title 28 U.S.C. as § 2255." 28 U.S.C., p. 280. The Note to Rule 3 states that the filing fee required for actions under § 2254 actions is not required for motions under § 2255: "[A]s in other motions filed in a criminal action, there is no requirement of a filing fee." 28 U.S.C., p. 283. Rule 11 was amended in 1979 to provide that the time for appeal of § 2255 motions is governed by Rule 4(a), the civil provision of the Federal Rules of Appellate Procedure, rather than Rule 4(b), the criminal provision. But the Note to Rule 11 states: "Even though section 2255 proceedings are a further step in the criminal case, [this provision] correctly states current law." 28 U.S.C., p. 695 (1976 ed., Supp.IV). The Note to Rule 12 states: "This rule differs from rule 11 of the § 2254 rules in that it includes the Federal Rules of Criminal Procedure as well as the civil. This is because of the nature of a § 2255 motion as a continuing part of the criminal proceeding (see advisory committee note to rule 1) as well as a remedy analogous to habeas corpus by state prisoners." 28 U.S.C., p. 287. 7 Francis v. Henderson, 425 U.S. 536, 543, 96 S.Ct. 1708, 1712, 48 L.Ed.2d 149 (1976) (BRENNAN, J., dissenting), quoting Fay v. Noia, 372 U.S. 391, 424, 83 S.Ct. 822, 841, 9 L.Ed.2d 837 (1963). 8 Rule 12(b)(2), amended in 1974, provided in pertinent part at the time Davis was decided that "Defenses and objections based on defects in the institution of the prosecution or in the indictment or information other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial. . . . Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver." 9 The Court stated in Davis, without citation, that "[t]he Federal Rules of Criminal Procedure do not ex proprio vigore govern post-conviction proceedings." 411 U.S., at 241, 93 S.Ct., at 1582. This statement was plainly wrong! The special § 2255 Rules had not yet been adopted and the Criminal Rules expressly state that they govern all criminal proceedings, see n. 7, supra. At any rate, the Court then went on, ipse dixit, to find it "inconceivable" that Congress did not intend to have Rule 12(b)(2) govern in the § 2255 action. 411 U.S., at 242, 93 S.Ct., at 1582. 10 I certainly agree with the Court of Appeals that "[a] clear miscarriage of justice has occurred if [respondent] was guilty of manslaughter and is now serving the penalty for murder." 204 U.S.App.D.C. 234, 240, 636 F.2d 506, 512 (1980). But it is by no means clear that there was a basis for finding that such a miscarriage may have occurred in this case.

01

456 U.S. 45 102 S.Ct. 1523 71 L.Ed.2d 732 Carl W. BROWN, Petitionerv.Earl J. HARTLAGE. No. 80-1285. Argued Jan. 30, 1982. Decided April 5, 1982. Syllabus Petitioner, the challenger, in a general election, for respondent's office as a Commissioner of Jefferson County, Ky., committed himself, at a televised press conference, to lowering Commissioners' salaries if elected. Upon learning that such commitment arguably violated a provision of the Kentucky Corrupt Practices Act (§ 121.055), petitioner retracted his pledge. On its face, § 121.055 prohibits a candidate from offering material benefits to voters in consideration for their votes. After petitioner won the election, respondent filed suit in a Kentucky state court, alleging that petitioner had violated § 121.055 and seeking to have the election declared void. Although finding that, under the reasoning of an earlier decision of the Kentucky Court of Appeals construing § 121.055, petitioner had violated the statute by promising to reduce his salary to less than that "fixed by law," the trial court concluded that petitioner had been "fairly elected" and refused to order a new election. The Kentucky Court of Appeals reversed. Held: Section 121.055 was applied in this case to limit speech in violation of the First Amendment. Pp. 52-62. (a) Although the States have a legitimate interest in preserving the integrity of their electoral processes, when a State seeks to restrict directly a candidate's offer of ideas to the voters, the First Amendment requires that the restriction be demonstrably supported by not only a legitimate state interest, but a compelling one, and that the restriction operate without unnecessarily circumscribing protected expression. Pp. 52-54. (b) The application of § 121.055 in this case cannot be justified as a prohibition on buying votes. Petitioner's statements, which were made openly and were subject to the criticism of his political opponent and to the scrutiny of the voters, were very different in character from corrupting private agreements and solicitations historically recognized as unprotected by the First Amendment. There is no constitutional basis upon which his pledge to reduce his salary may be equated with a candidate's promise to pay voters privately for their support from his own pocketbook. A candidate's promise to confer some ultimate benefit on the voter, qua taxpayer, citizen, or member of the general public, does not lie beyond the pale of First Amendment protection. Pp. 54-59. (c) If § 121.055 was designed to further the State's interest in ensuring that the willingness of some persons to serve in public office without remuneration does not make gratuitous service the sine qua non of plausible candidacy—resulting in persons of independent wealth but less ability being chosen over those who, though better qualified, cannot afford to serve at a reduced salary—it chose a means unacceptable under the First Amendment. The State's fear that voters might make an ill-advised choice does not provide the State with a compelling justification for limiting speech. It is not the government's function to select which issues are worth discussing in the course of a political campaign. P. 59-60. (d) Nor can application of § 121.055 here be justified on the basis of the State's interests and prerogatives with respect to factual misstatements, on the asserted ground that the statute bars promises to serve at a reduced salary only when the salary of the official has been "fixed by law" and the promise cannot, therefore, be delivered. Erroneous statement is inevitable in free debate, and it must be protected if the freedoms of expression are to have the "breathing space" that they need to survive. Nullifying petitioner's election victory would be inconsistent with the atmosphere of robust political debate required by the First Amendment. There was no showing that he made the disputed statement other than in good faith and without knowledge of its falsity, or with reckless disregard of whether it was false or not. Moreover, he retracted the statement promptly after determining that it might have been false. Pp. 60-62. Ky.App., 618 S.W.2d 603, reversed and remanded. Fred M. Goldberg, Louisville, Ky., for petitioner L. Stanley Chauvin, Jr., Louisville, Ky., as amicus curiae in support of the judgment below. Justice BRENNAN delivered the opinion of the Court. 1 The question presented is whether the First Amendment, as applied to the States through the Fourteenth Amendment, prohibits a State from declaring an election void because the victorious candidate had announced to the voters during his campaign that he intended to serve at a salary less than that "fixed by law." 2 * This case involves a challenge to an application of the Kentucky Corrupt Practices Act. The parties were opposing candidates in the 1979 general election for the office of Jefferson County Commissioner, "C" District. Petitioner, Carl Brown, was the challenger; respondent, Earl Hartlage, was the incumbent.1 On August 15, 1979, in the course of the campaign, Brown held a televised press conference together with Bill Creech, the "B" District candidate on the same party ticket. Brown charged his opponent with complicity in a form of fiscal abuse: 3 "There are . . . three part-time county commissioners. With state law limiting their authority and responsibility to legislation . . ., it is clear that their jobs are simply not worth $20,000 a year each. It is ludicrous that the part-time commissioners nevertheless see fit to pay themselves the same amount as that paid the full-time county judge. The mere fact that state law allows such outrageous levels of remuneration does not in itself justify those payments. . . . At a fiscal court meeting in 1976, Hartlage led a surprise move to . . . more than double the salaries of the county commissioners! His actions demonstrated his unmistakable disrespect for the office of the chief executive of this county and his utter disdain for the spirit of laws that govern our county system. . . . [U]sing the gray fringes of the law for his own personal gain, Hartlage led the move to funnel county tax dollars into commissioners' pockets." App. 1-2. 4 On behalf of himself and his running mate, Creech pledged the taxpayers some relief: 5 "We abhor the commissioners' outrageous salaries. And to prove the strength of our convictions, one of our first official acts as county commissioners will be to lower our salary to a more realistic level. We will lower our salaries, saving the taxpayers $36,000 during our first term of office, by $3,000 each year." Id., at 2.2 6 Shortly after the press conference, Brown and Creech learned that their commitment to lower their salaries arguably violated the Kentucky Corrupt Practices Act. On August 19, 1979, they issued a joint statement retracting their earlier pledge: 7 "We are men enough to admit when we've made a mistake. 8 "We have discovered that there are Kentucky court decisions and Attorney General opinions which indicate that our pledge to reduce our salaries if elected may be illegal. 9 * * * * * 10 ". . . . [W]e do hereby formally rescind our pledge to reduce the County Commissioners' salary if elected and instead pledge to seek corrective legislation in the next session of the General Assembly, to correct this silly provision of State Law." Id., at 4-5. 11 In the November 6, 1979, election, Brown defeated Hartlage by 10,151 votes.3 Creech was defeated. 12 Hartlage then filed this action in the Jefferson Circuit Court, alleging that Brown had violated the Corrupt Practices Act and seeking to have the election declared void and the office of Jefferson County Commissioner, "C" District, vacated by Brown. Section 121.055, upon which Hartlage based his claim, provides: 13 "Candidates prohibited from making expenditure, loan, promise, agreement, or contract as to action when elected, in consideration for vote.—No candidate for nomination or election to any state, county, city or district office shall expend, pay, promise, loan or become pecuniarily liable in any way for money or other thing of value, either directly or indirectly, to any person in consideration of the vote or financial or moral support of that person. No such candidate shall promise, agree or make a contract with any person to vote for or support any particular individual, thing or measure, in consideration for the vote or the financial or moral support of that person in any election, primary or nominating convention, and no person shall require that any candidate make such a promise, agreement or contract." Ky.Rev.Stat. § 121.055 (1982).4 14 In Sparks v. Boggs, 339 S.W.2d 480 (1960), the Kentucky Court of Appeals held that candidates' promises to serve at yearly salaries of $1, and to vote to distribute the salary savings to specified charitable organizations, violated the Corrupt Practices Act where the salaries had been "fixed by law." In the instant case, the trial court found that Brown's prospective salary had been fixed by law and that, under the reasoning of Sparks, Brown's promise violated the Act. Nevertheless, the court concluded that in light of Brown's retraction, the defeat of his running mate, who had joined in the pledge, and the presumption that the will of the people had been revealed through the election process, Brown had been "fairly elected." App. 25. It thus declined to order a new election. Id., at 26. 15 The Kentucky Court of Appeals reversed. 618 S.W.2d 603. That court agreed with the Circuit Court that the salary of County Commissioners was fixed by law,5 and that Brown's statement was proscribed by § 121.055 as construed in Sparks v. Boggs, supra.6 The Court of Appeals also held, however, that the trial court had erred in failing to order a new election. App. 34-35. It held that retraction of the offending statement was "of no consequence under the law of this state," id., at 35, and that the trial court was mistaken in believing that it possessed the discretionary authority to balance the gravity of the violation against the disenfranchisement of the electorate that would result from declaring the election void, ibid. With respect to Brown's First Amendment claims, the court was of the view that "[t]o hold that promises to serve at reduced compensation in violation of the Corrupt Practices Act are immune from regulation in view of the provisions of the United States Constitution is to open the door to arguments that other statements in violation of the Corrupt Practices Act are protected because they involve speech and self-expression." Id., at 36. The court quoted approvingly the maxims that "[a] state may punish those who abuse the constitutional freedom of speech by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace," and that "it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language." Id., at 36-37, quoting 16A Am.Jur.2d, Constitutional Law §§ 409, 507 (1979). The court then concluded that Brown's "statement was not constitutionally protected." App. 37. 16 In an opinion denying petitioner's motion for rehearing, the court more pointedly addressed petitioner's First Amendment arguments. The court found that the State's interest in the fairness and integrity of its elections was compelling, and that the State could insist that elections be conducted free of corruption and bribery. Id., at 39. The court restated its view that under the laws of the State a promise such as Brown's was considered an attempt to buy votes or to bribe the voters. Ibid. Finally, the court rejected petitioner's argument that § 121.055, as construed by Sparks, supra, was "unconstitutionally broad." Although the court found some appeal in Brown's argument that "[i]f carried to its logical extreme . . . any promise by a candidate to increase the efficiency and thus lower the cost of government might likewise be considered as an attempt to buy votes," the court was of the view that Sparks controlled its disposition and suggested to petitioner that he seek reconsideration of that decision in the Supreme Court of Kentucky. App. 39-40. The Supreme Court of Kentucky denied review. Id., at 41. We granted the petition for certiorari. 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981). II 17 We begin our analysis of § 121.055 by acknowledging that the States have a legitimate interest in preserving the integrity of their electoral processes. Just as a State may take steps to ensure that its governing political institutions and officials properly discharge public responsibilities and maintain public trust and confidence, a State has a legitimate interest in upholding the integrity of the electoral process itself. But when a State seeks to uphold that interest by restricting speech, the limitations on state authority imposed by the First Amendment are manifestly implicated. 18 At the core of the First Amendment are certain basic conceptions about the manner in which political discussion in a representative democracy should proceed. As we noted in Mills v. Alabama, 384 U.S. 214, 218-219, 86 S.Ct. 1434, 1436-1437, 16 L.Ed.2d 484 (1966): 19 "Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. 20 This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes." 21 The free exchange of ideas provides special vitality to the process traditionally at the heart of American constitutional democracy—the political campaign. "[I]f it be conceded that the First Amendment was 'fashioned to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people,' then it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office." Monitor Patriot Co. v. Roy, 401 U.S. 265, 271-272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971) (citation omitted). The political candidate does not lose the protection of the First Amendment when he declares himself for public office. Quite to the contrary: 22 "The candidate, no less than any other person, has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election and the election of other candidates. Indeed, it is of particular importance that candidates have the unfettered opportunity to make their views known so that the electorate may intelligently evaluate the candidates' personal qualities and their positions on vital public issues before choosing among them on election day. Mr. Justice Brandeis' observation that in our country 'public discussion is a political duty,' Whitney v. California, 274 U.S. 357, 375 [47 S.Ct. 641, 648, 71 L.Ed. 1095] (1927) (concurring opinion), applies with special force to candidates for public office." Buckley v. Valeo, 424 U.S. 1, 52-53 [96 S.Ct. 612, 651, 46 L.Ed.2d 659] (1976) (per curiam). 23 When a State seeks to restrict directly the offer of ideas by a candidate to the voters, the First Amendment surely requires that the restriction be demonstrably supported by not only a legitimate state interest, but a compelling one, and that the restriction operate without unnecessarily circumscribing protected expression. III 24 On its face, § 121.055 prohibits a candidate from offering material benefits to voters in consideration for their votes, and, conversely, prohibits candidates from accepting payments in consideration for the manner in which they serve their public function. Sparks v. Boggs, 339 S.W.2d 480 (1960), placed a not entirely obvious gloss on that provision with respect to candidate utterances concerning the salaries of the office for which they were running, by barring the candidate from promising to reduce his salary when that salary was already "fixed by law." We thus consider the constitutionality of § 121.055 with respect to the proscription evident on the face of the statute, and in light of the more particularized concerns suggested by the Sparks gloss. We discern three bases upon which the application of the statute to Brown's promise might conceivably be justified: first, as a prohibition on buying votes; second, as facilitating the candidacy of persons lacking independent wealth; and third, as an application of the State's interests and prerogatives with respect to factual misstatements. We consider these possible justifications in turn. A. 25 The first sentence of § 121.055 prohibits a political candidate from giving, or promising to give, anything of value to a voter in exchange for his vote or support. In many of its possible applications, this provision would appear to present little constitutional difficulty, for a State may surely prohibit a candidate from buying votes. No body politic worthy of being called a democracy entrusts the selection of leaders to a process of auction or barter. And as a State may prohibit the giving of money or other things of value to a voter in exchange for his support, it may also declare unlawful an agreement embodying the intention to make such an exchange. Although agreements to engage in illegal conduct undoubtedly possess some element of association, the State may ban such illegal agreements without trenching on any right of association protected by the First Amendment. The fact that such an agreement necessarily takes the form of words does not confer upon it, or upon the underlying conduct, the constitutional immunities that the First Amendment extends to speech. Finally, while a solicitation to enter into an agreement arguably crosses the sometimes hazy line distinguishing conduct from pure speech, such a solicitation, even though it may have an impact in the political arena, remains in essence an invitation to engage in an illegal exchange for private profit, and may properly be prohibited. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 496, 102 S.Ct. 1186, 1192, 71 L.Ed.2d 362 (1982); Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 563-564, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341 (1980); Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 388, 93 S.Ct. 2553, 2560, 37 L.Ed.2d 669 (1973). 26 It is thus plain that some kinds of promises made by a candidate to voters, and some kinds of promises elicited by voters from candidates, may be declared illegal without constitutional difficulty. But it is equally plain that there are constitutional limits on the State's power to prohibit candidates from making promises in the course of an election campaign. Some promises are universally acknowledged as legitimate, indeed "indispensable to decisionmaking in a democracy," First National Bank of Boston v. Bellotti, 435 U.S. 765, 777, 98 S.Ct. 1407, 1416, 55 L.Ed.2d 707 (1978); and the "maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means . . . is a fundamental principle of our constitutional system." Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931). Candidate commitments enhance the accountability of government officials to the people whom they represent, and assist the voters in predicting the effect of their vote. The fact that some voters may find their self-interest reflected in a candidate's commitment does not place that commitment beyond the reach of the First Amendment. We have never insisted that the franchise be exercised without taint of individual benefit; indeed, our tradition of political pluralism is partly predicated on the expectation that voters will pursue their individual good through the political process, and that the summation of these individual pursuits will further the collective welfare.7 So long as the hoped-for personal benefit is to be achieved through the normal processes of government, and not through some private arrangement, it has always been, and remains, a reputable basis upon which to cast one's ballot. 27 It remains to determine the standards by which we might distinguish between those "private arrangements" that are inconsistent with democratic government, and those candidate assurances that promote the representative foundation of our political system. We hesitate before attempting to formulate some test of constitutional legitimacy: the precise nature of the promise, the conditions upon which it is given, the circumstances under which it is made, the size of the audience, the nature and size of the group to be benefited, all might, in some instance and to varying extents, bear upon the constitutional assessment. But acknowledging the difficulty of rendering a concise formulation, or recognizing the possibility of borderline cases, does not disable us from identifying cases far from any troublesome border. 28 It is clear that the statements of petitioner Brown in the course of the August 15 press conference were very different in character from the corrupting agreements and solicitations historically recognized as unprotected by the First Amendment. Notably, Brown's commitment to serve at a reduced salary was made openly, subject to the comment and criticism of his political opponent and to the scrutiny of the voters. We think the fact that the statement was made in full view of the electorate offers a strong indication that the statement contained nothing fundamentally at odds with our shared political ethic. 29 The Kentucky Court of Appeals analogized Brown's promise to a bribe. But however persuasive that analogy might be as a matter of state law, there is no constitutional basis upon which Brown's pledge to reduce his salary might be equated with a candidate's promise to pay voters for their support from his own pocketbook. Although upon election Brown would undoubtedly have had a valid claim to the salary that had been "fixed by law," Brown did not offer the voters a payment from his personal funds. His was a declaration of intention to exercise the fiscal powers of government office within what he believed (albeit erroneously) to be the recognized framework of office. At least to outward appearances, the commitment was fully in accord with our basic understanding of legitimate activity by a government body. Before any implicit monetary benefit to the individual taxpayer might have been realized, public officials—among them, of course, Brown himself—would have had to approve that benefit in accordance with the good faith exercise of their public duties. Although Brown may have been incorrect in suggesting that his salary could have been lawfully reduced, this cannot, in itself, transform his promise into an invitation to engage in a private and politically corrupting arrangement. 30 In addition, despite the Kentucky courts' characterization of the promise to serve at a reduced salary as an offer "to reduce pro tanto the amount of taxes each individual taxpayer must pay, and thus . . . an offer to the voter of pecuniary gain," App. 33, it is impossible to discern in Brown's generalized commitment any invitation to enter into an agreement that might place the statement outside the realm of unequivocal protection that the Constitution affords to political speech. Not only was the source of the promised benefit the public fisc, but that benefit was to extend beyond those voters who cast their ballots for Brown, to all taxpayers and citizens. Even if Brown's commitment could in some sense have been deemed an "offer," it scarcely contemplated a particularized acceptance or a quid pro quo arrangement. It was to be honored, "if elected"; it was conditioned not on any particular vote or votes, but entirely on the majority's vote. 31 In sum, Brown did not offer some private payment or donation in exchange for voter support; Brown's statement can only be construed as an expression of his intention to exercise public power in a manner that he believed might be acceptable to some class of citizens. If Brown's expressed intention had an individualized appeal to some taxpayers who felt themselves the likely beneficiaries of his form of fiscal restraint, that fact is of little constitutional significance. The benefits of most public policy changes accrue not only to the undifferentiated "public," but more directly to particular individuals or groups. Like a promise to lower taxes, to increase efficiency in government, or indeed to increase taxes in order to provide some group with a desired public benefit or public service, Brown's promise to reduce his salary cannot be deemed beyond the reach of the First Amendment, or considered as inviting the kind of corrupt arrangement the appearance of which a State may have a compelling interest in avoiding. See Buckley v. Valeo, 424 U.S., at 27, 96 S.Ct., at 638. 32 A State may insist that candidates seeking the approval of the electorate work within the framework of our democratic institutions, and base their appeal on assertions of fitness for office and statements respecting the means by which they intend to further the public welfare. But a candidate's promise to confer some ultimate benefit on the voter, qua taxpayer, citizen, or member of the general public, does not lie beyond the pale of First Amendment protection. B 33 Sparks v. Boggs, 339 S.W.2d 480 (1960), relied in part on the interest a State may have in ensuring that the willingness of some persons to serve in public office without remuneration does not make gratuitous service the sine qua non of plausible candidacy.8 The State might legitimately fear that such emphasis on free public service might result in persons of independent wealth but less ability being chosen over those who, though better qualified, could not afford to serve at a reduced salary. But if § 121.055 was designed to further this interest, it chooses a means unacceptable under the First Amendment.9 In barring certain public statements with respect to this issue, the State ban runs directly contrary to the fundamental premises underlying the First Amendment as the guardian of our democracy. That Amendment embodies our trust in the free exchange of ideas as the means by which the people are to choose between good ideas and bad, and between candidates for political office. The State's fear that voters might make an ill-advised choice does not provide the State with a compelling justification for limiting speech. It is simply not the function of government to "select which issues are worth discussing or debating," Police Department of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972), in the course of a political campaign. C 34 Amicus points out that § 121.055, as applied through Sparks v. Boggs, supra, bars promises to serve at a reduced salary only when the salary of the official has been "fixed by law," and where the promise cannot, therefore, be delivered. Of course, demonstrable falsehoods are not protected by the First Amendment in the same manner as truthful statements. Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974). But "erroneous statement is inevitable in free debate, and . . . it must be protected if the freedoms of expression are to have the 'breathing space' that they 'need . . . to survive,' " New York Times Co. v. Sullivan, 376 U.S. 254, 271-272, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964), quoting NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963). Section 121.055, as applied in this case, has not afforded the requisite "breathing space." 35 The Commonwealth of Kentucky has provided that a candidate for public office forfeits his electoral victory if he errs in announcing that he will, if elected, serve at a reduced salary. As the Kentucky courts have made clear in this case, a candidate's liability under § 121.055 for such an error is absolute: His election victory must be voided even if the offending statement was made in good faith and was quickly repudiated. The chilling effect of such absolute accountability for factual misstatements in the course of political debate is incompatible with the atmosphere of free discussion contemplated by the First Amendment in the context of political campaigns. See Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971); Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 91 S.Ct. 628, 28 L.Ed.2d 57 (1971). Although the state interest in protecting the political process from distortions caused by untrue and inaccurate speech is somewhat different from the state interest in protecting individuals from defamatory falsehoods, the principles underlying the First Amendment remain paramount. Whenever compatible with the underlying interests at stake, under the regime of that Amendment "we depend for . . . correction not on the conscience of judges and juries but on the competition of other ideas." Gertz v. Robert Welch, Inc., supra, 418 U.S. at 339-340, 94 S.Ct. at 3006-3007. In a political campaign, a candidate's factual blunder is unlikely to escape the notice of, and correction by, the erring candidate's political opponent. The preferred First Amendment remedy of "more speech, not enforced silence," Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring), thus has special force. Cf. Gertz v. Robert Welch, Inc., supra, 418 U.S. at 344, 94 S.Ct. at 3009. There has been no showing in this case that petitioner made the disputed statement other than in good faith and without knowledge of its falsity, or that he made the statement with reckless disregard as to whether it was false or not. Moreover, petitioner retracted the statement promptly after discovering that it might have been false. Under these circumstances, nullifying petitioner's election victory was inconsistent with the atmosphere of robust political debate protected by the First Amendment. IV 36 Because we conclude that § 121.055 has been applied in this case to limit speech in violation of the First Amendment, we reverse the judgment of the Kentucky Court of Appeals and remand for proceedings not inconsistent with this opinion. 37 It is so ordered. 38 THE CHIEF JUSTICE concurs in the judgment. 39 Justice REHNQUIST, concurring in the result. 40 I agree that the provision of the Kentucky Corrupt Practices Act discussed by the Court in its opinion impermissibly limits freedom of speech on the part of political candidates in violation of the First and Fourteenth Amendments to the United States Constitution. Because on different facts I think I would give more weight to the State's interest in preventing corruption in elections, I am unable to join the Court's analogy between such laws and state defamation laws. I think Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966), affords ample basis for reaching the result at which the Court arrives, and I see no need to rely on other precedents which do not involve state efforts to regulate the electoral process. 1 Although respondent filed a brief in opposition to the petition for writ of certiorari, he did not file a brief on the merits. At the invitation of the Court, L. Stanley Chauvin, Jr., Esq., submitted a brief and argued in support of the judgment below as amicus curiae. 2 Brown echoed his running mate's call for fiscal restraint: ". . . These two proposals—cutting our own salaries and reorganizing the commissioner's office staff, will save the taxpayers over $172,000 during our term of office. "We make these statements fully aware that the office we intend to occupy should set the tone for the type of public officials we intend to be. "Under our guidance, extravagance of public expense will be a thing of the past, and responsibility and integrity will be our watchwords, Progress through Cooperation our theme." App. 3. 3 Hartlage received a total of 83,675 votes; Brown received 93,826 votes. Certificate of Election, id., at 7. 4 In 1980, the provision was amended to replace the word "demand" in the last clause with the word "require." 1980 Ky.Acts, ch. 292, § 3. Under Kentucky law, an equity action to contest an election may be maintained by any candidate who received more than 25% of the number of votes that were cast for the successful candidate. Ky.Rev.Stat. §§ 120.155, 120.165 (1982). The Kentucky Corrupt Practices Act identifies a violation of § 121.055 as a proper basis for such a contest, and provides that "[i]f no such violation [of the Corrupt Practices Act] by the contestant or by others in his behalf with his knowledge, appears, and it appears that such provisions have been violated by the contestee, or by others in his behalf with his knowledge, the nomination or election of the contestee shall be declared void." Ky.Rev.Stat. § 120.015 (1982). 5 The Court of Appeals noted that under Kentucky law, "salaries for county officers elected by popular vote shall be set by the fiscal court 'not later than the first Monday in May in the year in which the officers are elected, and the compensation of the officer shall not be changed during the term. . . .' Brown promised to do an act that he could not legally do." App. 32-33 (quoting Ky.Rev.Stat. § 64.530(4) (1980)). See Ky.Const. §§ 161, 246. 6 The court quoted the following extract from Sparks, describing the rationale underlying the statute's application to statements such as Brown's: " ' "An agreement by a candidate for office that if chosen he will discharge the duties of the office without compensation or for a lesser compensation than that provided by law, or will pay part of his salary into the public treasury, is illegal, whether made in good faith or not. The underlying principle . . . is that when a candidate offers to discharge the duties of an elective office for less than the salary fixed by law, a salary which must be paid by taxation, he offers to reduce pro tanto the amount of taxes each individual taxpayer must pay, and thus makes an offer to the voter of pecuniary gain." [quoting 43 Am.Jur., Public Officers § 374, p. 159 (1942)]. " 'It appears to us there can be no escape from the conclusion that a promise to take a reduction in the salary set by law for an elective public office, or an agreement to discharge the duties of the office gratis, advanced by one to induce votes for his candidacy, is so vicious in its tendency as to constitute a violation of the Corrupt Practices Act.' " App. 33. 7 See The Federalist No. 10. The Madisonian democratic tradition extolled a system of political pluralism in which "the private interest of every individual may be a sentinel over the public rights." The Federalist No. 51, p. 324 (H. Lodge ed. 1888). But it was also contemplated within that tradition that the individual may perceive his interest as according with the public good: "In the extended republic of the United States, and among the great variety of interests, parties and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good." Id., at 327. 8 As explained by the Kentucky Court of Appeals: "To hold otherwise would permit the various elective public offices to become filled by those who would purchase their election thereto by making the most extravagant bid. The auction method of choosing a public officer would supplant the personal fitness test. Eventually most of the public offices would be occupied by the opulent, who could afford to serve without pay, or by the ambitious, who would serve only for the pittance of honor attached to the office, or by the designing grafter, who would surely obtain his remuneration by methods which would not bear scrutiny. Under such a system good government would certainly vanish from every subdivision of the state." 339 S.W.2d, at 484. Other courts have expressed similar views. For example, Sparks quoted with approval the following passage from the opinion of Justice Brewer of the Supreme Court of Kansas, later Justice Brewer of this Court, in State ex rel. Bill v. Elting, 29 Kan. 397, 402 (1883): " 'The theory of popular government is that the most worthy should hold the offices. Personal fitness—and in that is included moral character, intellectual ability, social standing, habits of life, and political convictions—is the single test which the law will recognize. That which throws other considerations into the scale, and to that extent tends to weaken the power to personal fitness, should not be tolerated. It tends to turn away the thought of the voter from the one question which should be paramount in his mind when he deposits his ballot. It is in spirit at least, bribery, more insidious, and therefore more dangerous, than the grosser form of directly offering money to the voter.' " 339 S.W.2d, at 483-484. See also State ex rel. Clements v. Humphreys, 74 Tex. 466, 12 S.W. 99 (1889). 9 A State could address this concern by prohibiting the reduction of a public official's salary during his term of office, as Kentucky has done here. See n. 5, supra. Such a prohibition does not offend the First Amendment. We note, only in passing, that along with the 10 proposed Articles that upon ratification became the first 10 Amendments to the Constitution, were 2 others, proposed Articles I and II, which were not ratified. Article II provided: "No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened."

23

456 U.S. 107 102 S.Ct. 1558 71 L.Ed.2d 783 Ted ENGLE, Superintendent, Chillicothe Correctional Institute, Petitioner,v.Lincoln ISAAC. No. 80-1430. Argued Dec. 8, 1981. Decided April 5, 1982.* Rehearings Denied May 24 and June 21, 1982. See 456 U.S. 1001, 457 U.S. 2976, 102 S.Ct. 2286, 2976. Syllabus These cases present the question whether respondents, who were convicted after separate trials on unrelated charges in Ohio state courts, and who failed to comply with Ohio Rule of Criminal Procedure 30 mandating contemporaneous objections to jury instructions, may challenge the constitutionality of those instructions in federal habeas corpus proceedings under 28 U.S.C. § 2254. A provision of Ohio's Criminal Code (§ 2901.05(A)), effective January 1, 1974, placed the burden of proving guilt beyond a reasonable doubt upon the prosecution and provided that "[t]he burden of going forward with the evidence of an affirmative defense is upon the accused." Until 1976, most Ohio courts assumed that the statute did not change Ohio's traditional rule requiring defendants to carry the burden of proving the affirmative defense of self-defense by a preponderance of the evidence. In 1976, however, the Ohio Supreme Court, in State v. Robinson, 47 Ohio St.2d 103, 351 N.E.2d 88, held that the statute placed only the burden of production, not persuasion, on the defendant and that once the defendant produced some evidence of self-defense, the prosecutor had to disprove self-defense beyond a reasonable doubt. Respondents' trials occurred after § 2901.05(A)'s effective date, but before the decision in Robinson, and none of the respondents objected to the trial court's jury instruction that the respondent bore the burden of proving self-defense by a preponderance of the evidence. The appropriate Ohio Courts of Appeal affirmed the homicide convictions of respondents Hughes and Bell before the decision in Robinson, and the Ohio Supreme Court declined to review their convictions. Neither of these respondents challenged the self-defense instruction in their appeals. On respondent Isaac's appeal of his assault conviction to the intermediate appellate court, he relied upon the intervening decision in Robinson to challenge the self-defense instruction given at his trial. The court rejected the challenge as having been waived by Isaac's failure to comply with Ohio Rule of Criminal Procedure 30, and the Ohio Supreme Court dismissed his appeal. Each respondent unsuccessfully sought a writ of habeas corpus from a Federal District Court, but the Court of Appeals reversed all three District Court orders. Held: 1. Insofar as respondents simply challenged the correctness of the self-defense instructions under Ohio law, they alleged no deprivation of federal rights and were entitled to no federal habeas relief under 28 U.S.C. § 2254. Respondents' habeas petitions raised only one colorable constitutional claim. Pp. 119-123. (a) There is no merit to respondents' claim that § 2901.05(A) implicitly designated absence of self-defense an element of the crimes charged against them and thus due process required the prosecution to prove such element beyond a reasonable doubt. Merely because a State requires the prosecution to prove a particular circumstance beyond a reasonable doubt does not mean that it has defined that circumstance as an element of the crime. A State may want to assume the burden of disproving an affirmative defense without also designating absence of the defense an element of the crime. The Due Process Clause does not mandate that when a State treats absence of an affirmative defense as an "element" of the crime for one purpose, it must do so for all purposes. Pp. 119-121. (b) A colorable constitutional claim is stated by respondents' argument that since self-defense negates the elements of the crimes charged against them of voluntary, unlawful, and purposeful or knowing behavior, once the defendant raises the possibility of self-defense, the Due Process Clause requires that the State disprove that defense as part of its task of establishing voluntariness, unlawfulness, and guilty mens rea. The controversy among lower courts as to the viability of this type of claim suggests that respondents' argument states at least a plausible constitutional claim. Pp. 121-123. 2. Respondents are barred from asserting, in federal habeas corpus proceedings, their constitutional claim, which was forfeited before the state courts because of respondent's failure to comply with Ohio Rule of Criminal Procedure 30. Pp. 124-135. (a) While the writ of habeas corpus is a bulwark against convictions that violate "fundamental fairness," it undermines the usual principles of finality of litigation. Liberal allowance of the writ also degrades the prominence of the trial and costs society the right to punish admitted offenders. Moreover, the writ imposes special costs on the federal system, frustrating both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights. These costs are particularly high when a trial default has barred a prisoner from obtaining adjudication of his constitutional claim in the state courts, and thus, as held in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594, a state prisoner, barred by procedural default from raising a constitutional claim on direct appeal, may not litigate that claim in a § 2254 habeas corpus proceeding without showing cause for and actual prejudice from the default. The principles of Sykes are not limited to cases in which the constitutional error did not affect the truthfinding function of the trial. Pp. 126-129. (b) Cause for respondents' defaults cannot be based on the asserted ground that any objection to Ohio's self-defense instruction would have been futile since Ohio had long required criminal defendants to bear the burden of proving such affirmative defense. If a defendant perceives a viable constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim. Nor can cause for respondents' defaults be based on the asserted ground that they could not have known at the time of their trials that the Due Process Clause addresses the burden of proving affirmative defenses. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, decided four and one-half years before the first of respondents' trials, laid the basis for their constitutional claim. During the five years following that decision, numerous defendants relied upon Winship to argue that the Due Process Clause requires the prosecution to bear the burden of disproving certain affirmative defenses, and several lower courts sustained this claim. In light of this activity, it cannot be said that respondents lacked the tools to construct their constitutional claim. Pp. 130-134. (c) There is no merit to respondents' contention that the cause-and-prejudice standard of Sykes should be replaced by a plain-error inquiry. While federal courts apply a plain-error rule for direct review of federal convictions, federal habeas challenges to state convictions entail greater finality problems and special comity concerns. Moreover, a plain-error standard is unnecessary to correct miscarriages of justice. Victims of a fundamental miscarriage of justice will meet the cause-and-prejudice standard. Pp.134-135 646 F.2d 1129, 635 F.2d 575, and 642 F.2d 451, reversed and remanded. Simon B. Karas, Columbus, Ohio, for petitioner. James R. Kingsley, Circleville, Ohio, for respondent Isaac. Richard L. Aynes, Akron, Ohio, for respondents Bell and Hughes. Justice O'CONNOR delivered the opinion of the Court. 1 In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), we held that a state prisoner, barred by procedural default from raising a constitutional claim on direct appeal, could not litigate that claim in a § 2254 habeas corpus1 proceeding without showing cause for and actual prejudice from the default. Applying the principle of Sykes to these cases, we conclude that respondents, who failed to comply with an Ohio rule mandating contemporaneous objections to jury instructions, may not challenge the constitutionality of those instructions in a federal habeas proceeding. 2 * Respondents' claims rest in part on recent changes in Ohio criminal law. For over a century, the Ohio courts required criminal defendants to carry the burden of proving self-defense by a preponderance of the evidence. See State v. Seliskar, 35 Ohio St.2d 95, 298 N.E.2d 582 (1973); Szalkai v. State, 96 Ohio St. 36, 117 N.E. 12 (1917); Silvus v. State, 22 Ohio St. 90 (1872). A new criminal code, effective January 1, 1974, subjected all affirmative defenses to the following rule: 3 "Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof is upon the prosecution. The burden of going forward with the evidence of an affirmative defense is upon the accused." Ohio Rev.Code Ann. § 2901.05(A) (1975). 4 For more than two years after its enactment, most Ohio courts assumed that this section worked no change in Ohio's traditional burden-of-proof rules.2 In 1976, however, the Ohio Supreme Court construed the statute to place only the burden of production, not the burden of persuasion, on the defendant. Once the defendant produces some evidence of self-defense, the state court ruled, the prosecutor must disprove self-defense beyond a reasonable doubt. State v. Robinson, 47 Ohio St.2d 103, 351 N.E.2d 88 (syllabus by the court).3 The present actions arose because Ohio tried and convicted respondents after the effective date of § 2901.05(A), but before the Ohio Supreme Court's interpretation of that statute in Robinson.4 5 On December 16, 1974, an Ohio grand jury indicted respondent Hughes for aggravated murder.5 At trial the State showed that, in the presence of seven witnesses, Hughes shot and killed a man who was keeping company with his former girlfriend. Prosecution witnesses testified that the victim was unarmed and had just attempted to shake hands with Hughes. Hughes, however, claimed that he acted in self-defense. His testimony suggested that he feared the victim, a larger man, because he had touched his pocket while approaching Hughes. The trial court instructed the jury that Hughes bore the burden of proving this defense by a preponderance of the evidence. Counsel for Hughes did not specifically object to this instruction.6 6 On January 24, 1975, the jury convicted Hughes of voluntary manslaughter, a lesser included offense of aggravated murder.7 On September 24, 1975, the Summit County Court of Appeals affirmed the conviction, and on March 19, 1976, the Supreme Court of Ohio dismissed Hughes' appeal, finding no substantial constitutional question.8 Neither of these appeals challenged the jury instruction on self-defense. 7 Ohio tried respondent Bell for aggravated murder in April 1975. Evidence at trial showed that Bell was one of a group of bartenders who had agreed to help one another if trouble developed at any of their bars. On the evening of the murder, one of the bartenders called Bell and told him that he feared trouble from five men who had entered his bar. When Bell arrived at the bar, the bartender informed him that the men had left. Bell pursued them and gunned one of the men down in the street. 8 Bell defended on the ground that he had acted in self-defense. He testified that as he approached two of the men, the bartender shouted: "He's got a gun" or "Watch out, he's got a gun." At this warning, Bell started shooting. As in Hughes' case, the trial court instructed the jury that Bell had the burden of proving self-defense by a preponderance of the evidence. Bell did not object to this instruction and the jury convicted him of murder, a lesser-included offense of the charged crime.9 9 Bell appealed to the Cuyahoga County Court of Appeals, but failed to challenge the instruction assigning him the burden of proving self-defense. The Court of Appeals affirmed Bell's conviction on April 8, 1976.10 Bell appealed further to the Ohio Supreme Court, again neglecting to challenge the self-defense instruction. That court overruled his motion for leave to appeal on September 17, 1976,11 two months after it construed § 2901.05(A) to place the burden of proving absence of self-defense on the prosecution. See State v. Robinson, 47 Ohio St.2d 103, 351 N.E.2d 88. 10 Respondent Isaac was tried in September 1975 for felonious assault.12 The State showed that Isaac had severely beaten his former wife's boyfriend. Isaac claimed that the boyfriend punched him first and that he acted solely in self-defense. Without objection from Isaac, the court instructed the jury that Isaac carried the burden of proving this defense by a preponderance of the evidence. The jury acquitted Isaac of felonious assault, but convicted him of the lesser included offense of aggravated assault.13 11 Ten months after Isaac's trial, the Ohio Supreme Court decided State v. Robinson, supra. In his appeal to the Pickaway County Court of Appeals,14 Isaac relied upon Robinson to challenge the burden-of-proof instructions given at his trial. The court rejected this challenge because Isaac had failed to object to the jury instructions during trial, as required by Ohio Rule of Criminal Procedure 30.15 This default waived Isaac's claim. State v. Glaros, 170 Ohio St. 471, 166 N.E.2d 379 (1960); State v. Slone, 45 Ohio App.2d 24, 340 N.E.2d 413 (1975). 12 The Supreme Court of Ohio dismissed Isaac's appeal for lack of a substantial constitutional question.16 On the same day, that court decided State v. Humphries, 51 Ohio St.2d 95, 364 N.E.2d 1354 (1977), and State v. Williams, 51 Ohio St.2d 112, 364 N.E.2d 1364 (1977), vacated in part and remanded, 438 U.S. 911, 98 S.Ct. 3137, 57 L.Ed.2d 1156 (1978). In Humphries the court ruled that every criminal trial held on or after January 1, 1974, "is required to be conducted in accordance with the provisions of [Ohio Rev.Code Ann. § 2901.05]." 51 Ohio St.2d, at 95, 364 N.E.2d, at 1355 (syllabus by the court). The court, however, refused to extend this ruling to a defendant who failed to comply with Ohio Rule of Criminal Procedure 30. Id., at 102-103, 364 N.E.2d, at 1359. In Williams, the court declined to consider a constitutional challenge to Ohio's traditional self-defense instruction, again because the defendant had not properly objected to the instruction at trial. 13 All three respondents unsuccessfully sought writs of habeas corpus from Federal District Courts. Hughes' petition alleged that the State had violated the Fifth and Fourteenth Amendments by failing to prove guilt "as to each and every essential element of the offense charged" and by failing to "so instruct" the jury. The District Judge rejected this claim, finding that Ohio law does not consider absence of self-defense an element of aggravated murder or voluntary manslaughter. Although the self-defense instructions at Hughes' trial might have violated § 2901.05(A), they did not violate the Federal Constitution. Alternatively, the District Judge held that Hughes had waived his constitutional claim by failing to comply with Ohio's contemporaneous objection rule. Since Hughes offered no explanation for his failure to object, and showed no actual prejudice, Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), barred him from asserting the claim. Hughes v. Engle, Civ. Action No. C 77-156A (ND Ohio, June 26, 1979). 14 Bell's petition for habeas relief similarly alleged that the trial judge had violated due process by instructing "the jury that the accused must prove an affirmative defense by a preponderance of the evidence." The District Court acknowledged that Bell had never raised this claim in the state courts. Observing, however, that the State addressed Bell's argument on the merits, the District Court ruled that Bell's default was not a "deliberate bypass." See Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Although the court cited our opinion in Wainwright v. Sykes, supra, it did not inquire whether Bell had shown cause for or prejudice from his procedural waiver. The court then ruled that Ohio could constitutionally burden Bell with proving self-defense since it had not defined absence of self-defense as an element of murder. Bell v. Perini, No. C 78-343 (ND Ohio, Dec. 26, 1978). 15 Bell moved for reconsideration, urging that § 2901.05(A) had in fact defined absence of self-defense as an element of murder. The District Court rejected this argument and then declared that the "real issue" was whether Bell was entitled to retroactive application of State v. Robinson. Bell failed on this claim as well since Ohio's decision to limit retroactive application of Robinson "substantially further[ed] the State's legitimate interest in the finality of its decisions." App. to Pet. for Cert. A59. Indeed, the District Court noted that this Court had sanctioned just this sort of limit on retroactivity. See Hankerson v. North Carolina, 432 U.S. 233, 244, n. 8, 97 S.Ct. 2339, 2345, n. 8, 53 L.Ed.2d 306 (1977). Bell v. Perini, No. C 78-343 (ND Ohio, Jan. 23, 1979). 16 Isaac's habeas petition was more complex than those submitted by Hughes and Bell. He urged that the Ohio Supreme Court had "refuse[d] to give relief [to him], despite its own pronouncement" that State v. Robinson would apply retroactively. In addition, he declared broadly that the Ohio court's ruling was "contrary to the Supreme Court of the United States in regard to proving self-defense." The District Court determined that Isaac had waived any constitutional claims by failing to present them to the Ohio trial court. Since he further failed to show either cause for or actual prejudice from the waiver, see Wainwright v. Sykes, supra, he could not present his claim in a federal habeas proceeding. Isaac v. Engle, Civ. Action No. C-2-78-278 (SD Ohio, June 26, 1978). 17 The Court of Appeals for the Sixth Circuit reversed all three District Court orders. In Isaac v. Engle, 646 F.2d 1129 (1980), a majority of the en banc court ruled that Wainwright v. Sykes did not preclude consideration of Isaac's constitutional claims. At the time of Isaac's trial, the court noted, Ohio had consistently required defendants to prove affirmative defenses by a preponderance of the evidence. The futility of objecting to this established practice supplied adequate cause for Isaac's waiver. Prejudice, the second prerequisite for excusing a procedural default, was "clear" since the burden of proof is a critical element of factfinding, and since Isaac had made a substantial issue of self-defense. 646 F.2d, at 1134. 18 A majority of the court also believed that the instructions given at Isaac's trial violated due process. Four judges thought that § 2901.05(A) defined the absence of self-defense as an element of felonious and aggravated assault. While the State did not have to define its crimes in this manner, "due process require[d] it to meet the burden that it chose to assume." 646 F.2d, at 1135. A fifth judge believed that, even absent § 2901.05(A), the Due Process Clause would compel the prosecution to prove absence of self-defense because that defense negates criminal intent, an essential element of aggravated and felonious assault. A sixth judge agreed that Ohio had violated Isaac's due process rights, but would have concentrated on the State's arbitrary refusal to extend the retroactive benefits of State v. Robinson to Isaac.17 19 Relying on the en banc decision in Isaac, two Sixth Circuit panels ordered the District Court to release Bell and Hughes unless the State chose to retry them within a reasonable time. Bell v. Perini, 635 F.2d 575 (1980);18 Hughes v. Engle, judgt. order reported at 642 F.2d 451 (1980). We granted certiorari to review all three Sixth Circuit judgments. 451 U.S. 906, 101 S.Ct. 1973, 68 L.Ed.2d 294 (1981). II 20 A state prisoner is entitled to relief under 28 U.S.C. § 2254 only if he is held "in custody in violation of the Constitution or laws or treaties of the United States." Insofar as respondents simply challenge the correctness of the self-defense instructions under Ohio law, they allege no deprivation of federal rights and may not obtain habeas relief. The lower courts, however, read respondents' habeas petitions to state at least two constitutional claims. Respondents repeat both of those claims here. A. 21 First, respondents argue that § 2901.05, which governs the burden of proof in all criminal trials, implicitly designated absence of self-defense an element of the crimes charged against them. Since Ohio defined its crimes in this manner, respondents contend, our opinions in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); and Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), required the prosecution to prove absence of self-defense beyond a reasonable doubt. A plurality of the en banc Sixth Circuit seemed to accept this argument in Isaac's appeal, finding that due process required the State "to meet the burden that it chose to assume." 646 F.2d, at 1135. 22 A careful review of our prior decisions reveals that this claim is without merit.19 Our opinions suggest that the prosecution's constitutional duty to negate affirmative defenses may depend, at least in part, on the manner in which the State defines the charged crime. Compare Mullaney v. Wilbur, supra, with Patterson v. New York, supra. These decisions, however, do not suggest that whenever a State requires the prosecution to prove a particular circumstance beyond a reasonable doubt, it has invariably defined that circumstance as an element of the crime. A State may want to assume the burden of disproving an affirmative defense without also designating absence of the defense an element of the crime.20 The Due Process Clause does not mandate that when a State treats absence of an affirmative defense as an "element" of the crime for one purpose, it must do so for all purposes. The structure of Ohio's Code suggests simply that the State decided to assist defendants by requiring the prosecution to disprove certain affirmative defenses. Absent concrete evidence that the Ohio Legislature or courts understood § 2901.05(A) to go further than this, we decline to accept respondents' construction of state law. While they attempt to cast their first claim in constitutional terms, we believe that this claim does no more than suggest that the instructions at respondents' trials may have violated state law.21 B 23 Respondents also allege that, even without considering § 2901.05, Ohio could not constitutionally shift the burden of proving self-defense to them. All of the crimes charged against them require a showing of purposeful or knowing behavior. These terms, according to respondents, imply a degree of culpability that is absent when a person acts in self-defense. See Committee Comment to Ohio Rev.Code Ann. § 2901.21 (1975) ("generally, an offense is not committed unless a person . . . has a certain guilty state of mind at the time of his act or failure [to act]"); State v. Clifton, 32 Ohio App.2d 284, 286-287, 290 N.E.2d 921, 923 (1972) ("one who kills in self-defense does so without the mens rea that otherwise would render him culpable of the homicide"). In addition, Ohio punishes only actions that are voluntary, Ohio Rev.Code Ann. § 2901.21(A)(1) (1975), and unlawful, State v. Simon, No. 6262, p. 13 (Ct.App. Montgomery County, Ohio, Jan. 16, 1980), modified on reconsideration (Jan. 22, 1980). Self-defense, respondents urge, negates these elements of criminal behavior. Therefore, once the defendant raises the possibility of self-defense, respondents contend that the State must disprove that defense as part of its task of establishing guilty mens rea, voluntariness, and unlawfulness. The Due Process Clause, according to respondents' interpretation of Winship, Mullaney, and Patterson, forbids the States to disavow any portion of this burden.22 24 This argument states a colorable constitutional claim. Several courts have applied our Mullaney and Patterson opinions to charge the prosecution with the constitutional duty of proving absence of self-defense.23 Most of these decisions adopt respondents' reasoning that due process commands the prosecution to prove absence of self-defense if that defense negates an element, such as purposeful conduct, of the charged crime. While other courts have rejected this type of claim,24 the controversy suggests that respondents' second argument states at least a plausible constitutional claim. We proceed, therefore, to determine whether respondents preserved this claim before the state courts and, if not, to inquire whether the principles articulated in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), bar consideration of the claim in a federal habeas proceeding.25 III 25 None of the respondents challenged the constitutionality of the self-defense instruction at trial.26 They thus violated Ohio Rule of Criminal Procedure 30, which requires contemporaneous objections to jury instructions. Failure to comply with Rule 30 is adequate, under Ohio law, to bar appellate consideration of an objection. See, e.g., State v. Humphries, 51 Ohio St.2d 95, 364 N.E.2d 1354 (1977); State v. Gordon, 28 Ohio St.2d 45, 276 N.E.2d 243 (1971). The Ohio Supreme Court has enforced this bar against the very due process argument raised here. State v. Williams, 51 Ohio St.2d 112, 364 N.E.2d 1364 (1977), vacated in part and remanded, 438 U.S. 911, 98 S.Ct. 3137, 57 L.Ed.2d 1156 (1978).27 We must determine, therefore, whether respondents may litigate, in a federal habeas proceeding, a constitutional claim that they forfeited before the state courts.28 26 * The writ of habeas corpus indisputably holds an honored position in our jurisprudence. Tracing its roots deep into English common law,29 it claims a place in Art. I of our Constitution.30 Today, as in prior centuries, the writ is a bulwark against convictions that violate "fundamental fairness." Wainwright v. Sykes, 433 U.S., at 97, 97 S.Ct., at 2511-2512 (STEVENS, J., concurring). 27 We have always recognized, however, that the Great Writ entails significant costs.31 Collateral review of a conviction extends the ordeal of trial for both society and the accused. As Justice Harlan once observed, "[b]oth the individual criminal defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community." Sanders v. United States, 373 U.S. 1, 24-25, 83 S.Ct. 1068, 1081-1082, 10 L.Ed.2d 148 (1963) (dissenting opinion). See also Hankerson v. North Carolina, 432 U.S., at 247, 97 S.Ct., at 2347 (POWELL, J., concurring in judgment). By frustrating these interests, the writ undermines the usual principles of finality of litigation.32 28 Liberal allowance of the writ, moreover, degrades the prominence of the trial itself. A criminal trial concentrates society's resources at one "time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence." Wainwright v. Sykes, supra, 433 U.S., at 90, 97 S.Ct., at 2508. Our Constitution and laws surround the trial with a multitude of protections for the accused. Rather than enhancing these safeguards, ready availability of habeas corpus may diminish their sanctity by suggesting to the trial participants that there may be no need to adhere to those safeguards during the trial itself. 29 We must also acknowledge that writs of habeas corpus frequently cost society the right to punish admitted offenders. Passage of time, erosion of memory, and dispersion of witnesses may render retrial difficult, even impossible. While a habeas writ may, in theory, entitle the defendant only to retrial, in practice it may reward the accused with complete freedom from prosecution. 30 Finally, the Great Writ imposes special costs on our federal system. The States possess primary authority for defining and enforcing the criminal law. In criminal trials they also hold the initial responsibility for vindicating constitutional rights. Federal intrusions into state criminal trials frustrate both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights. See Schneckloth v. Bustamonte, 412 U.S. 218, 263-265, 93 S.Ct. 2041, 2066-2067, 36 L.Ed.2d 854 (1973) (POWELL, J., concurring).33 31 In Wainwright v. Sykes, we recognized that these costs are particularly high when a trial default has barred a prisoner from obtaining adjudication of his constitutional claim in the state courts. In that situation, the trial court has had no opportunity to correct the defect and avoid problematic retrials. The defendant's counsel, for whatever reasons, has detracted from the trial's significance by neglecting to raise a claim in that forum.34 The state appellate courts have not had a chance to mend their own fences and avoid federal intrusion. Issuance of a habeas writ, finally, exacts an extra charge by undercutting the State's ability to enforce its procedural rules. These considerations supported our Sykes ruling that, when a procedural default bars state litigation of a constitutional claim, a state prisoner may not obtain federal habeas relief absent a showing of cause and actual prejudice. 32 Respondents urge that we should limit Sykes to cases in which the constitutional error did not affect the truthfinding function of the trial. In Sykes itself, for example, the prisoner alleged that the State had violated the rights guaranteed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). While this defect was serious, it did not affect the determination of guilt at trial. 33 We do not believe, however, that the principles of Sykes lend themselves to this limitation. The costs outlined above do not depend upon the type of claim raised by the prisoner. While the nature of a constitutional claim may affect the calculation of cause and actual prejudice, it does not alter the need to make that threshold showing. We reaffirm, therefore, that any prisoner bringing a constitutional claim to the federal courthouse after a state procedural default must demonstrate cause and actual prejudice before obtaining relief. B 34 Respondents seek cause for their defaults in two circumstances. First, they urge that they could not have known at the time of their trials that the Due Process Clause addresses the burden of proving affirmative defenses. Second, they contend that any objection to Ohio's self-defense instruction would have been futile since Ohio had long required criminal defendants to bear the burden of proving this affirmative defense. 35 We note at the outset that the futility of presenting an objection to the state courts cannot alone constitute cause for a failure to object at trial. If a defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim.35 Even a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid. Allowing criminal defendants to deprive the state courts of this opportunity would contradict the principles supporting Sykes.36 36 Respondents' claim, however, is not simply one of futility. They further allege that, at the time they were tried, they could not know that Ohio's self-defense instructions raised constitutional questions. A criminal defendant, they urge, may not waive constitutional objections unknown at the time of trial. 37 We need not decide whether the novelty of a constitutional claim ever establishes cause for a failure to object.37 We might hesitate to adopt a rule that would require trial counsel either to exercise extraordinary vision or to object to every aspect of the proceedings in the hope that some aspect might mask a latent constitutional claim. On the other hand, later discovery of a constitutional defect unknown at the time of trial does not invariably render the original trial fundamentally unfair.38 These concerns, however, need not detain us here since respondents' claims were far from unknown at the time of their trials. 38 In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), decided four and one-half years before the first of respondents' trials, laid the basis for their constitutional claim. In Winship we held that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Id., at 364, 90 S.Ct., at 1073. During the five years following this decision,39 dozens of defendants relied upon this language to challenge the constitutionality of rules requiring them to bear a burden of proof.40 In most of these cases, the defendants' claims countered well-established principles of law. Nevertheless, numerous courts agreed that the Due Process Clause requires the prosecution to bear the burden of disproving certain affirmative defenses.41 In light of this activity, we cannot say that respondents lacked the tools to construct their constitutional claim.42 39 We do not suggest that every astute counsel would have relied uponWinship to assert the unconstitutionality of a rule saddling criminal defendants with the burden of proving an affirmative defense. Every trial presents a myriad of possible claims. Counsel might have overlooked or chosen to omit respondents' due process argument while pursuing other avenues of defense. We have long recognized, however, that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim. Where the basis of a constitutional claim is available, and other defense counsel have perceived and litigated that claim, the demands of comity and finality counsel against labeling alleged unawareness of the objection as cause for a procedural default.43 C 40 Respondents, finally, urge that we should replace or supplement the cause-and-prejudice standard with a plain-error inquiry. We rejected this argument when pressed by a federal prisoner, see United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816, and find it no more compelling here. The federal courts apply a plain-error rule for direct review of federal convictions. Fed.Rule Crim.Proc. 52(b). Federal habeas challenges to state convictions, however, entail greater finality problems and special comity concerns. We remain convinced that the burden of justifying federal habeas relief for state prisoners is "greater than the showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977); United States v. Frady, 456 U.S., at 166, 102 S.Ct., at 1593.44 41 Contrary to respondents' assertion, moreover, a plain-error standard is unnecessary to correct miscarriages of justice. The terms "cause" and "actual prejudice" are not rigid concepts; they take their meaning from the principles of comity and finality discussed above. In appropriate cases those principles must yield to the imperative of correcting a fundamentally unjust incarceration. Since we are confident that victims of a fundamental miscarriage of justice will meet the cause-and-prejudice standard, see Wainwright v. Sykes, 433 U.S., at 91, 97 S.Ct., at 2508-2509; id., at 94-97, 97 S.Ct., at 2510-2511 (STEVENS, J., concurring), we decline to adopt the more vague inquiry suggested by the words "plain error." IV 42 Close analysis of respondents' habeas petitions reveals only one colorable constitutional claim. Because respondents failed to comply with Ohio's procedures for raising that contention, and because they have not demonstrated cause for the default, they are barred from asserting that claim under 28 U.S.C. § 2254. The judgments of the Court of Appeals are reversed, and these cases are remanded for proceedings consistent with this opinion. 43 So ordered. 44 Justice BLACKMUN concurs in the result. 45 Justice STEVENS, concurring in part and dissenting in part. 46 A petition for a writ of habeas corpus should be dismissed if it merely attaches a constitutional label to factual allegations that do not describe a violation of any constitutional right. In Part II-A of its opinion, the Court seems to agree with this proposition. See ante, at 119-121. The Court nevertheless embarks on an exposition of the procedural hurdles that must be surmounted before confronting the merits of an allegation that "states at least a plausible constitutional claim." Ante, at 122. Those rules, the Court states, "do not depend upon the type of claim raised by the prisoner." Ante, at 129. Yet, the Court concludes, they will not bar relief for "victims of a fundamental miscarriage of justice." Ante, at 135. 47 In my opinion, the Court's preoccupation with procedural hurdles is more likely to complicate than to simplify the processing of habeas corpus petitions by federal judges.1 In these cases, I would simply hold that neither of the exhausted claims advanced by respondents justifies a collateral attack on their convictions.2 I agree with the Court's rejection of the claim that the enactment of § 2901.05 imposed a constitutional burden on Ohio prosecutors to prove the absence of self-defense beyond a reasonable doubt. It seems equally clear to me that, apart from § 2901.05, the Constitution does not require the prosecutor to shoulder that burden whenever willfulness is an element of the offense, provided, of course, that the jury is properly instructed on the intent issue. Nothing in the Court's opinion persuades me that the second theory is any more "plausible" than the first. 48 I would reverse on the merits the judgment of the Court of Appeals. 49 Justice BRENNAN, with whom Justice MARSHALL joins, dissenting. 50 Today's decision is a conspicuous exercise in judicial activism—particularly so since it takes the form of disregard of precedent scarcely a month old. In its eagerness to expatiate upon the "significant costs" of the Great Writ, ante, at 126-128, and to apply "the principles articulated in Wainwright v. Sykes [433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)]," ante, at 123, to the cases before us, the Court demonstrably misreads and reshapes the habeas claim of at least one of the state prisoners involved in this action. Respondent Isaac presented exactly one claim in his habeas petition. That claim did not even exist until after Isaac was denied relief on his last direct appeal. As a result, Isaac could not have "preserved" his claim in the state courts: He simply committed no "procedural default," and the Court is thus clearly wrong to apply Sykes to his claim in order to relegate it to the dustbin. Moreover, the Court does so by ignoring the holding only last month in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982): namely, that a habeas petition that contains any unexhausted claims must be dismissed by the habeas court. The Court then compounds its error when it attempts to articulate the "principles" of Sykes: In purporting to give content to the "cause" standard announced in that case, the Court defines "cause" in a way supported neither by Sykes nor by common sense. I dissent from both of these errors, which are discussed in turn below. 51 * Respondent Isaac was indicted in May 1975; he was convicted after a jury trial and sentenced during the following September.1 While his conviction was on appeal in the Ohio Court of Appeals, the Ohio Supreme Court decided State v. Robinson, 47 Ohio St.2d 103, 351 N.E.2d 88 (July 1976), which construed Ohio Rev. Code Ann. § 2901.05(A) (effective Jan. 1, 1974) to require the prosecution to bear the burden of persuasion, beyond a reasonable doubt, with respect to an affirmative defense of self-defense raised by the defendant. The Ohio Court of Appeals affirmed Isaac's conviction in February 1977.2 The Ohio Supreme Court dismissed Isaac's appeal in July 1977.3 On the same day, the Ohio Supreme Court decided State v. Humphries, 51 Ohio St.2d 95, 364 N.E.2d 1354. That case declared Robinson retroactive to the effective date of § 2901.05(A), but only partially: It held that in order to gain the retroactive benefits of the Robinson decision, a defendant tried before a jury must have preserved his claim by objection at trial to the allocation of the affirmative-defense burden of proof, while a bench-trial defendant could have made the same objection as late as in the Court of Appeals, and the objection would still have been preserved. 51 Ohio St.2d, at 102-103, 364 N.E.2d, at 1359. 52 Isaac filed his habeas petition in the United States District Court for the Southern District of Ohio in March 1978.4 The asserted ground for relief was "denial of due process of law," in that 53 "[t]he trial court charged petitioner had the burden of proving self-defense. After conviction and during the first appeal the Ohio Supreme Court declared the instructions to be prejudicial error under Robinson. This case was immediately raised to the Appellate Court. They held any error was waived. The Ohio Supreme Court then held Robinson retroactive. Petitioner had raised retroactivity in its leave to appeal and was denied leave to appeal the same day Humphries was decided declaring retroactivity. The Ohio Supreme Court refuses to give relief despite its own pronouncement. The holding of the court is contrary to the Supreme Court of the United States in regard to proving self-defense."5 54 Isaac's memorandum in support of his habeas petition made it plain that his claim was that Humphries' selective retroactive application of the Robinson rule denied him due process of law.6 It is obvious, of course, that it was simply impossible to make this claim before Humphries was decided, in July 1977, on the same day that Isaac's direct appeals in the state court system were finally rejected. 55 Ohio Rev.Code Ann. § 2953.21(A) (1975) provides for post-conviction relief under certain circumstances: 56 "Any person convicted of a criminal offense . . . claiming that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a verified petition at any time in the court which imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief." 57 By applying the doctrine of res judicata to postconviction petitions, the Ohio Supreme Court has allowed relief under this procedure only under limited circumstances: Constitutional issues can be raised under § 2953.21(A) only when they could not have been raised at trial or on appeal. State v. Perry, 10 Ohio St.2d 175, 180-181, 226 N.E.2d 104, 108 (1967); see Keener v. Ridenour, 594 F.2d 581, 589-591 (CA6 1979) (construing scope of Ohio postconviction remedy); Riley v. Havener, 391 F.Supp. 1177, 1179-1180 (ND Ohio 1974) (same). But Isaac's claim is manifestly of the sort that could not have been raised at trial or on appeal, for the claim only came into existence on the day that Isaac's last appeal was rejected. Consequently, state postconviction remedies are available to Isaac and have not been exhausted. 58 I draw three conclusions from the foregoing account, all of which to my mind follow ineluctably from the undisputed facts of this case. First, Isaac's habeas petition should have been dismissed for his failure to exhaust available state remedies. See Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), where we emphasized that 59 "the federal claim must be fairly presented to the state courts. . . . Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies." Id., at 275-276, 92 S.Ct. at 512-513. 60 In the present case, petitioner Engle responded to Isaac's petition by raising the issue of Isaac's failure to exhaust.7 Therefore the Court of Appeals clearly erred, under Picard and our whole line of exhaustion precedents, in granting habeas relief to Isaac instead of requiring exhaustion. The proper disposition of Isaac's case is thus to reverse and remand with instructions to dismiss on exhaustion grounds. The Court's failure to order such a disposition is incomprehensible: Barely a month ago this Court emphatically reaffirmed the exhaustion doctrine, and indeed extended it, announcing a requirement of "total exhaustion" for habeas petitions. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).8 But today the Court finds the nostrum of "cause and prejudice" more attractive, and so Rose v. Lundy is not applied. Sic transit gloria Lundy! In scarely a month, the bloom is off the Rose.9 61 My second conclusion is that Isaac simply committed no "procedural default" in failing to raise at trial or on direct appeal the claim that appears in his habeas petition. That claim did not exist at any time during Isaac's trial or direct appeal. Thus the essential factual predicate for an application of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), is completely absent in Isaac's case. Sykes involved a habeas petitioner who had failed to object in a timely manner to the admission of his confession at trial. Id., at 86-87, 97 S.Ct., at 2506-2507. Given that factual predicate, Sykes addressed the question of whether federal habeas review should be barred absent a showing of "cause" for the procedural default of failing to object, and a further showing of "prejudice" resulting from the admission of the confession. Id., at 87, 90-91, 97 S.Ct., at 2506, 2508-2509. But in the case before us, respondent Isaac could not have made any objection, timely or otherwise, at trial or on appeal. Thus the application of Sykes is completely and manifestly erroneous in this case.10 62 My last conclusion is that the Court is so intent upon applying Sykes to Isaac's case that it plays Procrustes with his claim. In order to bring Isaac's claim within the ambit of Sykes, the Court first characterizes his petition as "complex," ante, at 117, and "confused," ante, at 124, n. 25.11 Then, without ever quoting the claim as it actually appeared in Isaac's petition, the Court delineates a "colorable constitutional claim" nowhere to be found in the petition. As the Court recasts it, Isaac's claim is as follows: 63 "[T]he crim[e] charged against [Isaac] require[s] a showing of purposeful or knowing behavior. These terms, according to [Isaac], imply a degree of culpability that is absent when a person acts in self-defense. . . . Self-defense, [Isaac] urge[s], negates [essential] elements of criminal behavior. Therefore, once the defendant raises the possibility of self-defense, [Isaac] contend[s] that the State must disprove that defense as part of its task of establishing guilty mens rea, voluntariness, and unlawfulness. The Due Process Clause, according to [Isaac's] interpretation of Winship, Mullaney, and Patterson, forbids the States to disavow any portion of this burden." Ante, at 121-122. 64 This new-modeled claim bears no resemblance to the claim actually made by Isaac in his habeas petition. See supra, at 139.12 But by virtue of this exercise in juristic revisionism, the Court puts itself in position to find that "Isaac's" claim was "forfeited before the state courts," ante, at 125 —no difficult task, since the claim is wholly imagined by the Court itself—thus enabling the Court to reach its clearly sought goal of deciding "whether the principles articulated in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), bar consideration of the claim in a federal habeas proceeding." Ante, at 123. Unsurprisingly, the Court's bottom line is that Isaac's fictive claim is indeed barred by Sykes. In short, the Court reshapes respondent Isaac's actual claim into a form that enables it to foreclose all federal review, when as plainly pleaded the claim was unexhausted, thus calling for the dismissal of Isaac's petition for habeas relief. The Court's analysis is completely result-oriented, and represents a noteworthy exercise in the very judicial activism that the Court so deprecates in other contexts. II 65 For the reasons stated above, I conclude that in its unseemly rush to reach the merits of Isaac's case, the Court has ignored settled law respecting the exhaustion of state remedies. But lest it be thought that my disagreement with today's decision is confined to that point alone, I turn to the Court's treatment of the merits of the cases before us. I continue to believe that the "deliberate bypass" standard announced in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), is the only sensible rule to apply in habeas cases such as respondents'. I adhere to my dissent in Wainwright v. Sykes, supra, in which I termed the "cause-and-prejudice" standard adopted in that case "a mere house of cards whose foundation has escaped any systematic inspection." 433 U.S., at 99-100, n. 1, 97 S.Ct., at 2512-2513, n. 1. The Court has now begun to furnish its house of cards—and the furniture is as jerry-built as the house itself. A. 66 Sykes did not give the terms "cause" and "prejudice" any "precise content," but promised that "later cases" would provide such content. Id., at 91, 97 S.Ct., at 2508-2509. Today the nature of that content becomes distressingly apparent. The Court still refuses to say what "cause" is: And I predict that on the Court's present view it will prove easier for a camel to go through the eye of a needle than for a state prisoner to show "cause." But on the other hand, the Court is more than eager to say what "cause" is not: And in doing so, the Court is supported neither by common sense nor by the very reasons offered in Sykes for adoption of the "cause-and-prejudice" standard in the first place. 67 According to the Court, "cause" is not demonstrated when the Court "cannot say that [habeas petitioners] lacked the tools to construct their constitutional claim," ante, at 133, however primitive those tools were and thus however inchoate the claim was when petitioners were in the state courts. The court concludes, after several pages of tortuous reasoning, ante, at 130-133, and nn. 36-42, that respondents in the present cases did indeed have "the tools" to make their constitutional claims. This conclusion is reached by the sheerest inference: It is based on citations to other cases in other jurisdictions, where other defendants raised other claims assertedly similar to those that respondents "could" have raised. Ante, at 131-133, and n. 40. To hold the present respondents to such a high standard of foresight is tantamount to a complete rejection of the notion that there is a point before which a claim is so inchoate that there is adequate "cause" for the failure to raise it. In thus rejecting inchoateness as "cause," the Court overlooks the fact that none of the rationales used in Sykes to justify adoption of the cause-and-prejudice standard can justify today's definition of "cause." 68 Sykes adopted the cause-and-prejudice standard in order to accord "greater respect" to state contemporaneous-objection rules than was assertedly given by Fay v. Noia, supra. 433 U.S., at 88, 97 S.Ct., at 2507. The Court then offered a number of reasons why contemporaneous-objection rules should be given such greater respect: 69 (1) "A contemporaneous objection enables the record to be made with respect to the constitutional claim when the recollections of witnesses are freshest, not years later in a federal habeas proceeding." Ibid. 70 (2) A contemporaneous objection "enables the judge who observed the demeanor of those witnesses to make the factual determinations necessary for properly deciding the federal constitutional question." Ibid. 71 (3) "A contemporaneous-objection rule may lead to the exclusion of evidence objected to, thereby making a major contribution to finality in criminal litigation." Ibid. (4) The Fay v. Noia rule "may encourage 'sandbagging' on the part of defense lawyers, who may take their chances on a verdict of not guilty in a state trial court with the intent to raise their constitutional claims in a federal habeas court if their initial gamble does not pay off." 433 U.S., at 89, 97 S.Ct., at 2508. 72 (5) A contemporaneous-objection rule "encourages the result that [criminal trials] be as free of error as possible." Id., at 90, 97 S.Ct., at 2508. 73 None of these rationales has any force in the present case. The first three reasons are valid, if at all, only in the particular context of objections to the admission of evidence, such as were at issue in Sykes. As for the "sandbagging" rationale, dutifully repeated by today's Court, ante, at 129, n. 34, that was fully answered in my Sykes dissent:13 That argument still "offends common sense," and does not become less offensive by sententious repetition. And the final reason—relied on again today, ante, at 127 —is plainly irrelevant to a case involving inchoate constitutional claims. Such claims are ex hypothesis so embryonic that only the extraordinarily foresighted criminal defendant will raise them. It is completely implausible to expect that the raising of such claims will predictably—or even occasionally—make trials more "free of error." B 74 The Court justifies its result today with several additional reasons—or, rather, sentiments in reasons' clothing. We are told, ante, at 126-127, that "the Great Writ entails significant costs. Collateral review of a conviction extends the ordeal of trial for both society and the accused." But we are not told why the accused would consider it an "ordeal" to go to federal court in order to attempt to vindicate his constitutional rights. Nor are we told why society should be eager to ensure the finality of a conviction arguably tainted by unreviewed constitutional error directly affecting the truthfinding function of the trial. I simply fail to understand how allowance of a habeas hearing "entails significant costs" to anyone under the circumstances of the cases before us. 75 In a similar vein, we are told, ante, at 127, that "[w]e must also acknowledge that writs of habeas corpus frequently cost society the right to punish admitted offenders." I for one will acknowledge nothing of the sort. Respondents were all convicted after trials in which they allege that the burden of proof respecting their affirmative defenses was imposed upon them in an unconstitutional manner. Thus they are not "admitted" offenders at all: If they had been tried with the assertedly proper allocation of the burden of proof, then they might very well have been acquitted. Further, it is sheer demagoguery to blame the "offender" for the logistical and temporal difficulties arising from retrial: If the writ of habeas corpus has been granted, then it is at least as reasonable to blame the State for having prosecuted the first trial "in violation of the Constitution or laws . . . of the United States," 28 U.S.C. § 2254(a). Finally, we are told that 76 "the Great Writ imposes special costs on our federal system"; that "[f]ederal intrusions into state criminal trials frustrate both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights," ante, at 128; and that "[s]tate courts are understandably frustrated when they faithfully apply existing constitutional law only to have a federal court discover, during a § 2254 proceeding, new constitutional commands." Ante, at 128, n. 33. 77 Once again, the Court drags a red herring across its path. I hope that the Court forgets only momentarily that "the States' sovereign power" is limited by the Constitution of the United States: that the "intrusion" complained of is that of the supreme law of the land. But it must be reason for deep concern when this Court forgets, as it certainly does today, that "it is a constitution we are expounding, . . . a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs."14 It is inimical to the principle of federal constitutional supremacy to defer to state courts' "frustration" at the requirements of federal constitutional law as it is interpreted in an evolving society. Sykes promised that its cause-and-prejudice standard would "not prevent a federal habeas court from adjudicating for the first time the federal constitutional claim of a defendant who in the absence of such an adjudication will be the victim of a miscarriage of justice." 433 U.S., at 91, 97 S.Ct., at 2508. Today's decision, with its unvarnished hostility to the assertion of federal constitutional claims, starkly reveals the emptiness of that promise. C 78 Finally, there is the issue of the Court's extension of the Sykes standard "to cases in which the constitutional error . . . affect[s] the truthfinding function of the trial." Ante, at 129. The Court concedes, ibid., that Sykes itself involved the violation of the habeas petitioner's Miranda rights, and that although "this defect was serious, it did not affect the determination of guilt at trial." But despite the fact that the present cases admittedly do involve a defect affecting the determination of guilt, the Court refuses to limit Sykes and thus bars federal review: "We do not believe . . . that the principles of Sykes lend themselves to this limitation." Ante, at 129. In so holding, the Court ignores the manifest differences between claims that affect the truthfinding function of the trial and claims that do not. 79 The Court proclaimed in Stone v. Powell, 428 U.S. 465, 490, 96 S.Ct. 3037, 3050, 49 L.Ed.2d 1067 (1976), that "the ultimate question of guilt or innocence . . . should be the central concern in a criminal proceeding." A defendant's Fourth Amendment rights, see Stone, or his Miranda rights, see Sykes, may arguably be characterized as "crucially different from many other constitutional rights," Kaufman v. United States, 394 U.S. 217, 237, 89 S.Ct. 1068, 1079, 22 L.Ed.2d 227 (1969) (Black, J., dissenting), in that evidence procured in violation of those rights has not ordinarily been rendered untrustworthy by the means of its procurement. But a defendant's right to a trial at which the burden of proof has been constitutionally allocated can never be violated without rendering the entire trial result untrustworthy. "In all kinds of litigation it is plain that where the burden of proof lies may be decisive of the outcome," Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958), and petitioners in the present cases concede as much, Brief for Petitioners 22. As Justice Harlan noted in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970): 80 "If, for example, the standard of proof for a criminal trial were a preponderance of the evidence rather than proof beyond a reasonable doubt, there would be a smaller risk of factual errors that result in freeing guilty persons, but a far greater risk of factual errors that result in convicting the innocent." Id., at 371, 90 S.Ct., at 1076 (concurring opinion). 81 Where, as here, the burden was placed on respondents, rather than on the prosecution, to prove their affirmative defenses by a preponderance of the evidence, the risk of convicting the innocent is even greater than in Justice Harlan's example. And if this allocation of the burden of proof was erroneous, then that error constitutes a denial of due process of intolerable proportions. We have recognized the truth of this proposition in numerous precedents. In Ivan V. v. City of New York, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1972), we held our earlier decision in Winship to be fully retroactive, stating: 82 " 'Where the major purpose of a new constitutional doctrine is to overcome an aspect of a criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.' Williams v. United States, 401 U.S. 646, 653 [91 S.Ct. 1148, 1152-1153, 28 L.Ed.2d 388] (1971). See Adams v. Illinois, 405 U.S. 278, 280 [92 S.Ct. 916, 918, 31 L.Ed.2d 202] (1972); Roberts v. Russell, 392 U.S. 293, 295 [88 S.Ct. 1921, 1922, 20 L.Ed.2d 1100] (1968)." 407 U.S., at 204, 92 S.Ct., at 1952 (emphasis added).15 83 In sum, this Court has heretofore adhered to the principle that "[i]n the administration of criminal justice, our society imposes almost the entire risk of error upon itself," because "the interests of the defendant are of such magnitude." Addington v. Texas, 441 U.S. 418, 423-424, 99 S.Ct. 1804, 1807-1808, 60 L.Ed.2d 323 (1979). In the context of the cases before us today, this principle means that a habeas claim that a mistake was made in imposing that risk of error cannot be cavalierly dismissed as just another "type of claim raised by the prisoner," ante, at 129. In my view, the Sykes standard is misguided and insupportable in any context. But if it is to be suffered to exist at all, it should be limited to the arguable peripheries of the trial process: It should not be allowed to insulate from all judicial review all violations of the most fundamental rights of the accused. 84 I dissent. * Together with Perini, Correctional Superintendent v. Bell, and Engle, Correctional Superintendent v. Hughes, also on certiorari to the same court (see this Court's Rule 19.4). 1 Title 28 U.S.C. § 2254(a) empowers "[t]he Supreme Court, a Justice thereof, a circuit judge, or a district court" to "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." This statutory remedy may not be identical in all respects to the common-law writ of habeas corpus. See Wainwright v. Sykes, 433 U.S., at 78, 97 S.Ct., at 2502. 2 See, e.g., State v. Rogers, 43 Ohio St.2d 28, 30, 330 N.E.2d 674, 676 (1975) (noting that "self-defense is an affirmative defense, which must be established by a preponderance of the evidence"), cert. denied, 423 U.S. 1061 (1976). But see State v. Matthews, No. 74AP-428, p. 9 (Ct.App. Franklin County, Ohio, Dec. 24, 1974) (§ 2901.05(A) "evinces a legislative intent to change the burden of the defendant with respect to affirmative defenses"); 1 O. Schroeder & L. Katz, Ohio Criminal Law and Practice § 2901.05, p. 14 (1974) ("The provisions of 2901.05(A) follow the modern statutory trend in this area, requiring the accused to raise the affirmative defense, but leaving the burden of persuasion upon the prosecution"); Student Symposium: The Proposed Ohio Criminal Code—Reform and Regression, 33 Ohio St.L.J. 351, 420 (1972) (suggesting that legislators intended to change traditional rule). 3 In Ohio, the court's syllabus contains the controlling law. See Haas v. State, 103 Ohio St. 1, 7-8, 132 N.E. 158, 159-160 (1921). 4 Two years after Robinson, the Ohio Legislature once again amended Ohio's burden-of-proof law. The new § 2901.05(A), effective November 1, 1978, provides: "Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused." Ohio Rev.Code Ann. § 2901.05(A) (Supp.1980) (emphasis added). This amendment has no effect on the litigation before us. Throughout this opinion, citations to § 2901.05(A) refer to the statute in effect between January 1, 1974, and October 31, 1978. 5 See Ohio Rev.Code Ann. § 2903.01 (1975): "(A) No person shall purposely, and with prior calculation and design, cause the death of another. "(B) No person shall purposely cause the death of another while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson or arson, aggravated robbery or robbery, aggravated burglary or burglary, or escape. "(C) Whoever violates this section is guilty of aggravated murder, and shall be punished as provided in section 2929.02 of the Revised Code." 6 Hughes' counsel did register a general objection "to the entire Charge in its entirety" because "[w]e are operating now under a new code in which many things are uncertain." App. 48. Counsel's subsequent remarks, however, demonstrated that his objection concerned only the proposed definitions of "Aggravated Murder, Murder and Voluntary Manslaughter." Id., at 48, 50. 7 Voluntary manslaughter is "knowingly caus[ing] the death of another" while under "extreme emotional stress brought on by serious provocation reasonably sufficient to incite [the defendant] into using deadly force." Ohio Rev.Code Ann. § 2903.03(A) (1975). Hughes was sentenced to 6-25 years in prison. The State's petition for certiorari indicated that Hughes has been "granted final releas[e] as a matter of parole." Pet. for Cert. 6. This release does not moot the controversy between Hughes and the State. See Humphrey v. Cady, 405 U.S. 504, 506-507, n. 2, 92 S.Ct. 1048, 1050-1051, n. 2, 31 L.Ed.2d 394 (1972); Carafas v. LaVallee, 391 U.S. 234, 237-240, 88 S.Ct. 1556, 1559, 1560-1561, 20 L.Ed.2d 554 (1968). 8 See State v. Hughes, C.A. No. 7717 (Ct.App. Summit County, Ohio, Sept. 24, 1975); State v. Hughes, No. 75-1026 (Ohio, Mar. 19, 1976). 9 Ohio defines murder as "purposely caus[ing] the death of another." Ohio Rev.Code Ann. § 2903.02(A) (1975). Bell received a sentence of 15 years to life imprisonment. 10 State v. Bell, No. 34727 (Ct.App. Cuyahoga County, Ohio, Apr. 8, 1976). 11 State v. Bell, No. 76-573 (Ohio, Sept. 17, 1976). 12 See Ohio Rev.Code Ann. § 2903.11 (1975): "(A) No person shall knowingly: "(1) Cause serious physical harm to another; "(2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance as defined in section 2923.11 of the Revised Code. "(B) Whoever violates this section is guilty of felonious assault, a felony of the second degree." 13 Ohio Rev.Code Ann. § 2903.12 (1975) describes aggravated assault: "(A) No person, while under extreme emotional stress brought on by serious provocation reasonably sufficient to incite him into using deadly force shall knowingly: "(1) Cause serious physical harm to another; "(2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance as defined in section 2923.11 of the Revised Code. "(B) Whoever violates this section is guilty of aggravated assault, a felony of the fourth degree." The judge sentenced Isaac to a term of six months' to five years' imprisonment. According to the State's petition for certiorari, Isaac has been released from jail. This controversy is not moot, however. See n. 7, supra. 14 State v. Isaac, No. 346 (Ct.App. Pickaway County, Ohio, Feb. 11, 1977). 15 At the time Hughes and Bell were tried, this Rule stated in relevant part: "No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury." Shortly before Isaac's trial, Ohio amended the language of the Rule in minor respects: "A party may not assign as error the giving or the failure to give any instructions unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury." Both versions of the Ohio Rule closely parallel Rule 30 of the Federal Rules of Criminal Procedure. 16 State v. Isaac, No. 77-412 (Ohio, July 20, 1977). 17 The latter analysis paralleled the reasoning of the panel that originally decided the case. See Isaac v. Engle, 646 F.2d 1122 (1980). Four members of the court dissented from the en banc opinion. Two judges would have found no constitutional violation and two would have barred consideration of Isaac's claims under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). 18 One judge dissented from this decision, indicating that Wainwright v. Sykes, supra, barred Bell's claims. 19 The State suggests that the ineffectiveness of this claim demonstrates that respondents suffered no actual prejudice from their procedural default. We agree that the claim is insufficient to support habeas relief, but do not categorize this insufficiency as a lack of prejudice. If a state prisoner alleges no deprivation of a federal right, § 2254 is simply inapplicable. It is unnecessary in such a situation to inquire whether the prisoner preserved his claim before the state courts. 20 Definition of a crime's elements may have consequences under state law other than allocation of the burden of persuasion. For example, the Ohio Supreme Court interpreted § 2901.05(A) to require defendants to come forward with some evidence of affirmative defenses. State v. Robinson, 47 Ohio St.2d 103, 351 N.E.2d 88 (1976). Defendants do not bear the same burden with respect to the elements of a crime; the State must prove those elements beyond a reasonable doubt even when the defendant introduces no evidence. See, e.g., State v. Isaac, 44 Ohio Misc. 87, 337 N.E.2d 818 (Munic.Ct.1975). Moreover, while Ohio requires the trial court to charge the jury on all elements of a crime, e.g., State v. Bridgeman, 51 Ohio App.2d 105, 366 N.E.2d 1378 (1977), vacated in part, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), it does not require explicit instructions on the prosecution's duty to negate self-defense beyond a reasonable doubt. State v. Abner, 55 Ohio St.2d 251, 379 N.E.2d 228 (1978). 21 We have long recognized that a "mere error of state law" is not a denial of due process. Gryger v. Burke, 334 U.S. 728, 731, 68 S.Ct. 1256, 1257, 92 L.Ed. 1683 (1948). If the contrary were true, then "every erroneous decision by a state court on state law would come [to this Court] as a federal constitutional question." Ibid. See also Beck v. Washington, 369 U.S. 541, 554-555, 82 S.Ct. 955, 962-963, 8 L.Ed.2d 98 (1962); Bishop v. Mazurkiewicz, 634 F.2d 724, 726 (CA3 1980); United States ex rel. Burnett v. Illinois, 619 F.2d 668, 670-671 (CA7 1980). 22 In further support of the claim that, § 2901.05 aside, due process requires the prosecution to prove absence of self-defense, respondent Bell maintains that the States may never constitutionally punish actions taken in self-defense. If fundamental notions of due process prohibit criminalization of actions taken in self-defense, Bell suggests, then absence of self-defense is a vital element of every crime. See Jeffries & Stephan, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 Yale L.J. 1325, 1366-1379 (1979); Comment, Shifting the Burden of Proving Self-Defense—With Analysis of Related Ohio Law, 11 Akron L.Rev. 717, 758-759 (1978); Note, The Constitutionality of Affirmative Defenses After Patterson v. New York, 78 Colum.L.Rev. 655, 672-673 (1978); Note, Burdens of Persuasion in Criminal Proceedings: The Reasonable Doubt Standard After Patterson v. New York, 31 U.Fla.L.Rev. 385, 415-416 (1979). 23 E.g., Tennon v. Ricketts, 642 F.2d 161 (CA5 1981); Holloway v. McElroy, 632 F.2d 605 (CA5 1980), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981); Wynn v. Mahoney, 600 F.2d 448 (CA4), cert. denied, 444 U.S. 950, 100 S.Ct. 423, 62 L.Ed.2d 320 (1979); Commonwealth v. Hilbert, 476 Pa. 288, 382 A.2d 724 (1978). See also Comment, 11 Akron L.Rev., supra n. 22; Note, 78 Colum.L.Rev., supra n. 22. 24 E.g., Carter v. Jago, 637 F.2d 449 (CA6 1980); Baker v. Muncy, 619 F.2d 327 (CA4 1980). See also Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) (rule requiring accused to prove insanity beyond a reasonable doubt does not violate due process). 25 Justice BRENNAN accuses the Court of misreading Isaac's habeas petition in order to create a procedural default and "expatiate upon" the principles of Sykes. Post, at 137-138, 142-144. It is immediately apparent that these charges of "judicial activism" and "revisionism" carry more rhetorical force than substance. Our decision addresses the claims of three respondents, and Justice BRENNAN does not dispute our characterization of the petitions filed by respondents Bell and Hughes. If the Court were motivated by a desire to expound the law, rather than to adjudicate the individual claims before it, the cases of Bell and Hughes would provide ample opportunity for that task. Instead, we have attempted to decide each of the controversies presented to us. Justice BRENNAN, moreover, clearly errs when he suggests that Isaac's habeas petition "presented exactly one claim," that the "selective retroactive application of the Robinson rule denied him due process of law." Post, at 137,139. Isaac's memorandum in support of his habeas petition did not adopt such a miserly view. Instead, Isaac relied heavily upon Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); and Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), cases explaining that, at least in certain circumstances, the Due Process Clause requires the prosecution to disprove affirmative defenses. See App. to Brief in No. 78-3488 (CA6), pp. 26, 28-31. Nor did the District Judge construe Isaac's petition in the manner suggested by Justice BRENNAN. Rather, he believed that Isaac raised "the federal constitutional question of whether, under Ohio law, placing the burden of proving the affirmative defense of self-defense upon the defendant violates the defendant's due process right to have the State prove each essential element of the crime beyond a reasonable doubt." App. to Pet. for Cert. A41. Similarly, all but one of the Sixth Circuit Judges who considered Isaac's case en banc thought that Isaac raised more claims than the one isolated by Justice BRENNAN. Even the panel opinion invoked by Justice BRENNAN, post, at 142, n. 10, rejected the notion that Isaac presented only one claim. 646 F.2d, at 1127. Isaac's own brief to this Court, finally, recites a long list of claims. Although he alludes to the argument featured by Justice BRENNAN, he also maintains that his jury was misinstructed "[a]s a matter of federal constitutional law," Brief for Respondent Isaac 15, and that Mullaney v. Wilbur and Hankerson v. North Carolina control his claims. Brief for Respondent Isaac 2, 3, 13-15. Under these circumstances, it is incomprehensible that Justice BRENNAN construes Isaac's habeas petition to raise but a single claim. It appears to us, moreover, that the claim touted by Justice BRENNAN formed no part of Isaac's original habeas petition. While Isaac's petition and supporting memorandum referred to the Ohio Supreme Court's decision in State v. Humphries, 51 Ohio St.2d 95, 364 N.E.2d 1354 (1977), Isaac did not discuss that decision's distinction between bench and jury trials, the distinction that Justice BRENNAN finds so interesting. Post, at 138-139. Instead, the focus of his argument was that "[i]f a state declares disproving an affirmative defense (once raised) is an element of the state's case, then to require a defendant to prove that affirmative defense violates due process and full retroactive effect must be accorded to defendants tried under the erroneous former law." App. to Brief in No. 78-3488 (CA6), p. 30. Thus, Isaac reasoned that once Robinson interpreted absence of self-defense as an "element of the state's case," Mullaney imposed a constitutional obligation upon the State to carry that burden. If Ohio did not apply Robinson retroactively to all defendants "tried under the erroneous former law," Isaac concluded, it would violate Mullaney. Ohio's failure to apply Robinson retroactively to him violated due process, not because Ohio had applied that decision retroactively to other defendants, but because "[t]he instruction at his trial denied him due process under Mullaney." App. to Brief in No. 78-3488 (CA6), pp. 26-27. This argument parallels the ones we discuss in text. It is, of course, possible to construe Isaac's confused petition and supporting memorandum to raise the claim described by Justice BRENNAN. Many prisoners allege general deprivations of their constitutional rights and raise vague objections to various state rulings. A creative appellate judge could almost always distill from these allegations an unexhausted due process claim. If such a claim were present, Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), would mandate dismissal of the entire petition. In this case, however, the District Judge did not identify the claim that Justice BRENNAN proffers. Under these circumstances, we are reluctant to interpolate an unexhausted claim not directly presented by the petition. Rose v. Lundy does not compel such harsh treatment of habeas petitions. 26 While respondent Bell does not deny his procedural default, he argues that we should overlook it because the State did not raise the issue in its filings with the District Court. In some cases a State's plea of default may come too late to bar consideration of the prisoner's constitutional claim. E.g., Estelle v. Smith, 451 U.S. 454, 468, n. 12, 101 S.Ct. 1866, 1876 n. 12, 68 L.Ed.2d 359 (1981); Jenkins v. Anderson, 447 U.S. 231, 234, n. 1, 100 S.Ct. 2124, 2127 n. 1, 65 L.Ed.2d 86 (1980). In this case, however, both the District Court and Court of Appeals evaluated Bell's default. Bell, moreover, did not make his "waiver of waiver" claim until he submitted his brief on the merits to this Court. Accordingly, we decline to consider his argument. 27 In Isaac's own case, the Ohio Court of Appeals refused to entertain his challenge to the self-defense instruction because of his failure to comply with Rule 30. The Ohio Supreme Court subsequently dismissed Isaac's appeal for lack of a substantial constitutional question. It is unclear whether these appeals raised a constitutional, or merely statutory, attack on the self-defense instruction used at Isaac's trial. If Isaac presented his constitutional argument to the state courts, then they determined, on the very facts before us, that the claim was waived. Relying upon State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), respondents argue that the Ohio Supreme Court has recognized its power, under Ohio's plain-error rule, to excuse Rule 30 defaults. Long, however, does not persuade us that the Ohio courts would have excused respondents' defaults. First, the Long court stressed that the plain-error rule applies only in "exceptional circumstances," such as where, "but for the error, the outcome of the trial clearly would have been otherwise." Id., at 96, 97, 372 N.E.2d, at 807, 808. Second, the Long decision itself refused to invoke the plain-error rule for a defendant who presented a constitutional claim identical to the one pressed by respondents. 28 As we recognized in Sykes, 433 U.S., at 78-79, 97 S.Ct., at 2502, the problem of waiver is separate from the question whether a state prisoner has exhausted state remedies. Section 2254(b) requires habeas applicants to exhaust those remedies "available in the courts of the State." This requirement, however, refers only to remedies still available at the time of the federal petition. See Humphrey v. Cady, 405 U.S., at 516, 92 S.Ct., at 1055; Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 847, 9 L.Ed.2d 837 (1963). Respondents, of course, long ago completed their direct appeals. Ohio, moreover, provides only limited collateral review of convictions; prisoners may not raise claims that could have been litigated before judgment or on direct appeal. See Ohio Rev.Code Ann. § 2953.21(A) (1975); Collins v. Perini, 594 F.2d 592 (CA6 1979); Keener v. Ridenour, 594 F.2d 581 (CA6 1979). Since respondents could have challenged the constitutionality of Ohio's traditional self-defense instruction at trial or on direct appeal, we agree with the lower courts that state collateral relief is unavailable to respondents and, therefore, that they have exhausted their state remedies with respect to this claim. 29 See 3 W. Blackstone, Commentaries *129-*138; Secretary of State for Home Affairs v. O'Brien, [1923] A.C. 603. 30 Art. I, § 9, cl. 2. 31 Judge Henry J. Friendly put the matter well when he wrote that "[t]he proverbial man from Mars would surely think we must consider our system of criminal justice terribly bad if we are willing to tolerate such efforts at undoing judgments of conviction." Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 145 (1970). Justice POWELL, elucidating a position that ultimately commanded a majority of the Court, similarly suggested: "No effective judicial system can afford to concede the continuing theoretical possibility that there is error in every trial and that every incarceration is unfounded. At some point the law must convey to those in custody that a wrong has been committed, that consequent punishment has been imposed, that one should no longer look back with the view to resurrecting every imaginable basis for further litigation but rather should look forward to rehabilitation and to becoming a constructive citizen." Schneckloth v. Bustamonte, 412 U.S. 218, 262, 93 S.Ct. 2041, 2065, 36 L.Ed.2d 854 (1973) (concurring opinion) (footnote omitted). See also Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). 32 Judge Friendly and Professor Bator suggest that this absence of finality also frustrates deterrence and rehabilitation. Deterrence depends upon the expectation that "one violating the law will swiftly and certainly become subject to punishment, just punishment." Rehabilitation demands that the convicted defendant realize that "he is justly subject to sanction, that he stands in need of rehabilitation." Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 452 (1963); Friendly, supra n. 31, at 146. 33 During the last two decades, our constitutional jurisprudence has recognized numerous new rights for criminal defendants. Although some habeas writs correct violations of long-established constitutional rights, others vindicate more novel claims. State courts are understandably frustrated when they faithfully apply existing constitutional law only to have a federal court discover, during a § 2254 proceeding, new constitutional commands. In an individual case, the significance of this frustration may pale beside the need to remedy a constitutional violation. Over the long term, however, federal intrusions may seriously undermine the morale of our state judges. As one scholar has observed, there is "nothing more subversive of a judge's sense of responsibility, of the inner subjective conscientiousness which is so essential a part of the difficult and subtle art of judging well, than an indiscriminate acceptance of the notion that all the shots will always be called by someone else." Bator, supra n. 32, at 451. Indiscriminate federal intrusions may simply diminish the fervor of state judges to root out constitutional errors on their own. While this concern cannot detract from a federal court's duty to correct a "miscarriage of justice," Sykes, 433 U.S., at 91, 97 S.Ct., at 2508-2509, it counsels some care in administering § 2254. 34 Counsel's default may stem from simple ignorance or the pressures of trial. We noted in Sykes, however, that a defendant's counsel may deliberately choose to withhold a claim in order to "sandbag"—to gamble on acquittal while saving a dispositive claim in case the gamble does not pay off. See 433 U.S., at 89-90, 97 S.Ct., at 2507-2508. 35 See Estelle v. Williams, 425 U.S. 501, 515, 96 S.Ct. 1691, 1698, 48 L.Ed.2d 126 (1976) (POWELL, J., concurring) (footnote omitted) (the policy disfavoring inferred waivers of constitutional rights "need not be carried to the length of allowing counsel for a defendant deliberately to forgo objection to a curable trial defect, even though he is aware of the factual and legal basis for an objection, simply because he thought objection would be futile"); Myers v. Washington, 646 F.2d 355, 364 (CA9 1981) (Poole, J., dissenting) (futility cannot constitute cause if it means simply that a claim was "unacceptable to that particular court at that particular time"), cert. pending, No. 81-1056. 36 In fact, the decision to withhold a known constitutional claim resembles the type of deliberate bypass condemned in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Since the cause-and-prejudice standard is more demanding than Fay 's deliberate bypass requirement, see Sykes, supra, 433 U.S., at 87, 97 S.Ct., at 2506-2507, we are confident that perceived futility alone cannot constitute cause. 37 The State stressed at oral argument before this Court that it does not seek such a ruling. Instead, Ohio urges merely that "when the tools are available to construct the argument, . . . you can charge counsel with the obligation of raising that argument." Tr. of Oral Arg. 8-9. 38 See Mackey v. United States, 401 U.S. 667, 675-702, 91 S.Ct. 1160, 1164-1165, 28 L.Ed.2d 404 (1971) (separate opinion of Harlan, J.); Williams v. United States, 401 U.S. 646, 665-666, 91 S.Ct. 1148, 1158-1159, 28 L.Ed.2d 388 (1971) (MARSHALL, J., concurring in part and dissenting in part); Hankerson v. North Carolina, 432 U.S., at 246-248, 97 S.Ct., at 2346-2347 (POWELL, J., concurring in judgment). 39 Even before Winship, criminal defendants and courts perceived that placing a burden of proof on the defendant may violate due process. For example, in Stump v. Bennett, 398 F.2d 111, cert. denied, 393 U.S. 1001, 89 S.Ct. 483, 21 L.Ed.2d 466 (1968), the Eighth Circuit ruled en banc that an Iowa rule requiring defendants to prove alibis by a preponderance of the evidence violated due process. The court, moreover, observed: "That an oppressive shifting of the burden of proof to a criminal defendant violates due process is not a new doctrine within constitutional law." 398 F.2d, at 122. See also Johnson v. Bennett, 393 U.S. 253, 89 S.Ct. 436, 21 L.Ed.2d 415 (1968) (vacating and remanding lower court decision for reconsideration in light of Stump); State v. Nales, 28 Conn.Supp. 28, 248 A.2d 242 (1968) (holding that due process forbids requiring defendant to prove "lawful excuse" for possession of housebreaking tools). 40 See, e. g., State v. Commenos, 461 S.W.2d 9 (Mo.1970) (en banc) (intent to return allegedly stolen item); Phillips v. State, 86 Nev. 720, 475 P.2d 671 (1970) (insanity), cert. denied, 403 U.S. 940, 91 S.Ct. 2260, 29 L.Ed.2d 719 (1971); Commonwealth v. O'Neal, 441 Pa. 17, 271 A.2d 497 (1970) (absence of malice); Commonwealth v. Vogel, 440 Pa. 1, 268 A.2d 89 (1970) (insanity), overruled, Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974); Smith v. Smith, 454 F.2d 572 (CA5 1971) (alibi), cert. denied, 409 U.S. 885, 93 S.Ct. 99, 34 L.Ed.2d 141 (1972); United States v. Braver, 450 F.2d 799 (CA2 1971) (inducement), cert. denied, 405 U.S. 1064, 92 S.Ct. 1493, 31 L.Ed.2d 794 (1972); Wilbur v. Robbins, 349 F.Supp. 149 (Me.1972) (heat of passion), aff'd sub nom. Wilbur v. Mullaney, 473 F.2d 943 (CA1 1973), vacated, 414 U.S. 1139, 94 S.Ct. 889, 39 L.Ed.2d 96 (1974), on remand, 496 F.2d 1303 (CA1 1974), aff'd, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); State v. Cuevas, 53 Haw. 110, 488 P.2d 322 (1971) (lack of malice aforethought or presence of legal justification); State v. Brown, 163 Conn. 52, 301 A.2d 547 (1972) (possession of license to deal in drugs), overruled on other grounds, State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980); In re Foss, 10 Cal.3d 910, 519 P.2d 1073, 112 Cal.Rptr. 649 (1974) (en banc) (entrapment); Woods v. State, 233 Ga. 347, 211 S.E.2d 300 (1974) (authority to sell narcotic drugs), appeal dism'd, 422 U.S. 1002, 95 S.Ct. 2623, 45 L.Ed.2d 667 (1975); State v. Buzynski, 330 A.2d 422 (Me.1974) (mental disease); People v. Jordan, 51 Mich.App. 710, 216 N.W.2d 71 (1974) (absence of intent), disapproved on other grounds, People v. Johnson, 407 Mich. 196, 284 N.W.2d 718 (1979); Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974) (intoxication); Retail Credit Co. v. Dade County, 393 F.Supp. 577 (SD Fla.1975) (maintenance of reasonable procedures); Fuentes v. State, 349 A.2d 1 (Del.1975) (extreme emotional distress), overruled, State v. Moyer, 387 A.2d 194 (Del.1978); Henderson v. State, 234 Ga. 827, 218 S.E.2d 612 (1975) (self-defense); State v. Grady, 276 Md. 178, 345 A.2d 436 (1975) (alibi); Evans v. State, 28 Md.App. 640, 349 A.2d 300 (1975) (absence of malice; further describing in detail that due process requires prosecution to negate most affirmative defenses, including self-defense), aff'd, 278 Md. 197, 362 A.2d 629 (1976); State v. Robinson, 48 Ohio App.2d 197, 356 N.E.2d 725 (1975) (self-defense), aff'd, 47 Ohio St.2d 103, 351 N.E.2d 88 (1976). See also Trimble v. State, 229 Ga. 399, 401-402, 191 S.E.2d 857, 858-859 (1972) (dissenting opinion) (alibi), overruled, Patterson v. State, 233 Ga. 724, 213 S.E.2d 612 (1975); Grace v. State, 231 Ga. 113, 118, 125-128, 200 S.E.2d 248, 252, 256-258 (1973) (dissenting opinions) (insanity). Several commentators also perceived that Winship might alter traditional burdens of proof for affirmative defenses. E.g., W. LaFave & A. Scott, Handbook on Criminal Law § 8, pp. 46-51 (1972); The Supreme Court 1969 Term, 84 Harv.L.Rev. 1, 159 (1970); Student Symposium, 33 Ohio St.L.J., supra n. 2, at 421; Comment, Due Process and Supremacy as Foundations for the Adequacy Rule: The Remains of Federalism After Wilbur v. Mullaney, 26 U.Maine L.Rev. 37 (1974). 41 Even those decisions rejecting the defendant's claim, of course, show that the issue had been perceived by other defendants and that it was a live one in the courts at the time. 42 Respondent Isaac even had the benefit of our opinion in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), decided three months before his trial. In Mullaney we invalidated a Maine practice requiring criminal defendants to negate malice by proving that they acted in the heat of passion. We thus explicitly acknowledged the link between Winship and constitutional limits on assignment of the burden of proof. Cf. Lee v. Missouri, 439 U.S. 461, 462, 99 S.Ct. 710, 711, 58 L.Ed.2d 736 (1979) (per curiam) (suggesting that defendants who failed, after Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), to object to the exclusion of women from juries must show cause for the failure). Respondents argue at length that, before the Ohio Supreme Court's decision in State v. Robinson, 47 Ohio St.2d 103, 351 N.E.2d 88 (1976), they did not know that Ohio Rev.Code Ann. § 2901.05(A) changed the traditional burden of proof. Ohio's interpretation of § 2901.05(A), however, is relevant only to claims that we reject independently of respondents' procedural default. See supra, at 119-121; n. 25, supra. 43 Respondents resist this conclusion by noting that Hankerson v. North Carolina, 432 U.S., at 243, 97 S.Ct., at 2345, gave Mullaney v. Wilbur, the opinion explicitly recognizing Winship § effect on affirmative defenses, "complete retroactive effect." Hankerson itself, however, acknowledged the distinction between the retroactive availability of a constitutional decision and the right to claim that availability after a procedural default. Justice WHITE's majority opinion forthrightly suggested that the States "may be able to insulate past convictions [from the effect of Mullaney] by enforcing the normal and valid rule that failure to object to a jury instruction is a waiver of any claim of error." 432 U.S., at 244, n. 8, 97 S.Ct. at 2345-2346, n. 8. In these cases we accept the force of that language as applied to defendants tried after Winship. Since we conclude that these respondents lacked cause for their default, we do not consider whether they also suffered actual prejudice. Respondents urge that their prejudice was so great that it should permit relief even in the absence of cause. Sykes, however, stated these criteria in the conjunctive and the facts of these cases do not persuade us to depart from that approach. 44 Respondents bolster their plain-error contention by observing that Ohio will overlook a procedural default if the trial defect constituted plain error. Ohio, however, has declined to exercise this discretion to review the type of claim pressed here. See n. 27, supra. If Ohio had exercised its discretion to consider respondents' claim, then their initial default would no longer block federal review. See Mullaney v. Wilbur, supra, 421 U.S., at 688, n. 7, 95 S.Ct., at 1884, n. 7; Ulster County Court v. Allen, 442 U.S. 140, 147-154, 99 S.Ct. 2213, 2219-2223, 60 L.Ed.2d 777 (1979). Our opinions, however, make clear that the States have the primary responsibility to interpret and apply their plain-error rules. Certainly we should not rely upon a state plain-error rule when the State has refused to apply that rule to the very sort of claim at issue. 1 The Court establishes in this case and in United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816, that "to obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) 'cause' excusing his . . . procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." Id., at 167-168, 102 S.Ct., at 1594. I joined Frady because the Court applied the prejudice prong of the cause-and-prejudice standard in an appropriate fashion, concluding that the erroneous instruction did not "[infect the] entire trial with error of constitutional dimensions," id., at 170, 102 S.Ct., at 1596, and "[perceiving] no risk of a fundamental miscarriage of justice in this case," id., at 172, 102 S.Ct., at 1596. Like the prejudice prong, the cause prong has some relation to the inquiry I believe the Court should undertake in habeas corpus cases. See Rose v. Lundy, 455 U.S. 509, 547-548, n. 17, 102 S.Ct. 1198, 1218, n. 17, 71 L.Ed.2d 379 (STEVENS, J., dissenting). The failure to object generally indicates that defense counsel felt that the trial error was not critical to his client's case; presumably, therefore, the error did not render the trial fundamentally unfair. In these cases, however, the Court applies the cause prong without relating its application to the fairness of respondents' trials. Indeed, the Court categorically rejects respondents' argument "that their prejudice was so great that it should permit relief even in the absence of cause," noting that Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594, stated the cause-and-prejudice standard in the conjunctive. Ante, at 134, n. 43. I would not apply that standard, as the Court does in this case, to bar habeas corpus relief simply as a matter of procedural foreclosure. 2 A third claim is that respondents were deprived of due process and equal protection of the laws because the Ohio Supreme Court refused to apply retroactively to their convictions its disapproval of the challenged jury instruction. The Court declines to address this claim on the ground that it was not expressly raised in the habeas corpus petition. Ante, at 124, n. 25. I am not sure whether it can be said that the claim has not been raised, but in any event I find the claim unpersuasive. 1 App. 2; App. to Brief in No. 78-3488 (CA6), pp. 2, 3-4. 2 App. 6. 3 Id., at 13. 4 App. to Brief in No. 78-3488 (CA6), p. 18. 5 Id., at 21 (emphasis added). 6 Id., at 25: "[T]he Ohio Supreme Court denied [Isaac] leave to appeal on the same day it decided State v. Humphries, . . . which declared its ruling in Robinson to be retroactive to January 1, 1974. . . . [Isaac] submits to make Robinson retroactive, and then to refuse to give him the benefits of retroactivity violates the due process guarantees of the Fourteenth Amendment. . . ." 7 Id., at 35-36. 8 "A rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error. As the number of prisoners who exhaust all of their federal claims increases, state courts may become increasingly familiar with and hospitable toward federal constitutional issues." 455 U.S., at 518-519, 102 S.Ct., at 1203. 9 The Court notes, ante, at 123-124, n. 25, that Isaac added citations to Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), in his memorandum in support of his habeas petition. The Court apparently holds that these citations somehow save Isaac's petition from dismissal. But that holding is flatly contrary to the explicit holding of Rose, that "the exhaustion rule in 28 U.S.C. § 2254(b), (c) requires a federal district court to dismiss a petition for a writ of habeas corpus containing any claims that have not been exhausted in the state courts." 455 U.S., at 510, 102 S.Ct., at 1199. (emphasis added). Recognizing this flat contradiction, the Court suggests that the claim "touted" by me "formed no part of Isaac's original habeas petition." Ante, at 124, n. 25. This suggestion is clearly belied by the plain language of Isaac's habeas petition, which the Court never quotes, but which is quoted in full supra, at 139. That language speaks for itself, far more clearly and eloquently than the Court's unsuccessful attempt to reconstruct it. 10 The panel opinion of the United States Court of Appeals for the Sixth Circuit in Isaac's case reached this same conclusion. The panel correctly read Isaac's petition as presenting the question of "whether the decision of the Supreme Court of Ohio to withhold from petitioner the benefits of Section 2901.05(A), as established in State v. Robinson, for failure to comply with Ohio's contemporaneous objection rule was a deprivation of due process." 646 F.2d 1122, 1124 (1980). As to this question, the panel accurately concluded that "Wainwright v. Sykes, supra, is not applicable to . . . [Isaac's] petition." Id., at 1127. 11 The full text of Isacc's claim appears supra, at 139. It is plain that the Court's claims of "complexity" and "confusion" are merely a smokescreen, behind which the Court feels free to reshape Isaac's claim. 12 It does bear some resemblance to Isaac's claim as construed by the plurality opinion of the Court of Appeals en banc below. 646 F.2d, at 1133-1136. But the plurality's construction was simply incorrect, and this Court should correct such errors, not perpetuate them. 13 433 U.S., at 103-104, and n. 5, 97 S.Ct., at 2515, and n. 5: "Under the regime of collateral review recognized since the days of Brown v. Allen [344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953) ], and enforced by the Fay bypass test, no rational lawyer would risk the 'sandbagging' feared by the Court.5 "5. In brief, the defense lawyer would face two options: (1) He could elect to present his constitutional claims to the state courts in a proper fashion. If the state trial court is persuaded that a constitutional breach has occurred, the remedies dictated by the Constitution would be imposed, the defense would be bolstered, and the prosecution accordingly weakened, perhaps precluded altogether. If the state court rejects the properly tendered claims, the defense has lost nothing: Appellate review before the state courts and federal habeas consideration are preserved. (2) He could elect to 'sandbag.' This presumably means, first, that he would hold back the presentation of his constitutional claim to the trial court, thereby increasing the likelihood of a conviction since the prosecution would be able to present evidence that, while arguably constitutionally deficient, may be highly prejudicial to the defense. Second, he would thereby have forfeited all state review and remedies with respect to these claims (subject to whatever 'plain error' rule is available). Third, to carry out his scheme, he would now be compelled to deceive the federal habeas court and to convince the judge that he did not 'deliberately bypass' the state procedures. If he loses on this gamble, all federal review would be barred, and his 'sandbagging' would have resulted in nothing but the forfeiture of all judicial review of his client's claims. The Court, without substantiation, apparently believes that a meaningful number of lawyers are induced into option 2 by Fay. I do not. That belief simply offends common sense." 14 McCulloch v. Maryland, 4 Wheat. 316, 407, 415, 4 L.Ed. 579 (1819). 15 We later relied on Ivan V. in holding that our decision in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), must be applied retroactively. Hankerson v. North Carolina, 432 U.S. 233, 242-244, 97 S.Ct. 2339, 2344-2346, 53 L.Ed.2d 306 (1977).

01

456 U.S. 63 102 S.Ct. 1534 71 L.Ed.2d 748 AMERICAN TOBACCO COMPANY, et al., Petitioners,v.John PATTERSON, et al. No. 80-1199. Argued Jan. 19, 1981. Decided April 5, 1982. Syllabus Section 703(h) of the Civil Rights Act of 1964 provides that "it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin." Actions were brought in Federal District Court by black employees of petitioner employer and by the Equal Employment Opportunity Commission, charging that certain lines of progression for job advancement established by the employer in agreement with petitioner labor union after the effective date of the Act constituted a racially discriminatory seniority system in violation of Title VII of the Act. The actions were consolidated for trial and injunctive relief was initially granted, but ultimately the Court of Appeals, without deciding whether the lines of progression were part of a seniority system, held that even if they were, § 703(h) does not apply to seniority systems adopted after the effective date of the Act. Held: Section 703(h) is not limited to seniority systems adopted before the effective date of the Act. To construe it as so limited is contrary to § 703(h)'s plain language, inconsistent with this Court's prior cases, and counter to the national labor policy. And there is nothing in the legislative history to indicate that § 703(h) does not protect post-Act adoption of a bona fide seniority system or that Congress intended to distinguish between adoption and application of such a system. Pp. 1537-1542. 634 F.2d 744 (4th Cir.), vacated and remanded. 1 Henry T. Wickham, Richmond, Va., for petitioners American Tobacco Co., et al. 2 Ronald Rosenberg, Washington, D. C., for petitioner Unions. 3 Henry L. Marsh, III, Richmond, Va., for respondents John Patterson, et al. 4 David A. Strauss, Washington, D. C., for respondent E.E.O.C., pro hac vice, by special leave of Court. 5 Justice WHITE delivered the opinion of the Court. 6 Under Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), a prima facie violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. (1976 ed. and Supp.IV), "may be established by policies or practices that are neutral on their face and in intent but that nonetheless discriminate in effect against a particular group." Teamsters v. United States, 431 U.S. 324, 349, 97 S.Ct. 1843, 1861, 52 L.Ed.2d 396 (1977). A seniority system "would seem to fall under the Griggs rationale" if it were not for § 703(h) of the Civil Rights Act. Ibid. That section, as set forth in 42 U.S.C. § 2000e-2(h), provides in pertinent part: 7 "Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for 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. . . ." 8 Under § 703(h), the fact that a seniority system has a discriminatory impact is not alone sufficient to invalidate the system; actual intent to discriminate must be proved. The Court of Appeals in this case, however, held that § 703(h) does not apply to seniority systems adopted after the effective date of the Civil Rights Act.1 We granted the petition for certiorari to address the validity of this construction of the section. 452 U.S. 937, 101 S.Ct. 3078, 69 L.Ed.2d 951 (1982). 9 * Petitioner American Tobacco Co. operates two plants in Richmond, Va., one which manufactures cigarettes and one which manufactures pipe tobacco. Each plant is divided into a prefabrication department, which blends and prepares tobacco for further processing, and a fabrication department, which manufactures the final product. Petitioner Bakery, Confectionery & Tobacco Workers' International Union and its affiliate Local 182 are the exclusive collective-bargaining agents for hourly paid production workers at both plants. 10 It is uncontested that prior to 1963 the company and the union engaged in overt race discrimination. The union maintained two segregated locals, and black employees were assigned to jobs in the lower paying prefabrication departments. Higher paying jobs in the fabrication departments were largely reserved for white employees. An employee could transfer from one of the predominately black prefabrication departments to one of the predominately white fabrication departments only by forfeiting his seniority. 11 In 1963, under pressure from Government procurement agencies enforcing the antidiscrimination obligations of Government contractors, the company abolished departmental seniority in favor of plantwide seniority and the black union local was merged into the white local. However, promotions were no longer based solely on seniority but rather on seniority plus certain qualifications, and employees lost accumulated seniority in the event of a transfer between plants. Between 1963 and 1968, when this promotions policy was in force, virtually all vacancies in the fabrication departments were filled by white employees due to the discretion vested in supervisors to determine who was qualified. 12 In November 1968, the company proposed the establishment of nine lines of progression, six of which are at issue in this case. The union accepted and ratified the lines of progression in 1969. Each line of progression generally consisted of two jobs. An employee was not eligible for the top job in the line until he had worked in a bottom job. Four of the six lines of progression at issue here consisted of nearly all-white top jobs from the fabrication departments linked with nearly all-white bottom jobs from the fabrication departments; the other two consisted of all-black top jobs from the prefabrication departments linked with all-black bottom jobs from the prefabrication departments. The top jobs in the white lines of progression were among the best paying jobs in the plants. 13 On January 3, 1969, respondent Patterson and two other black employees filed charges with the Equal Employment Opportunity Commission alleging that petitioners had discriminated against them on the basis of race. The EEOC found reasonable cause to believe that petitioners' seniority, wage, and job classification practices violated Title VII. After conciliation efforts failed, the employees filed a class action in District Court in 1973 charging petitioners with racial discrimination in violation of Title VII and 42 U.S.C. § 1981. Their suit was consolidated for trial with a subsequent Title VII action filed by the EEOC alleging both race and sex discrimination. Following trial, the District Court held that petitioners' seniority, promotion, and job classification practices violated Title VII. The court found that six of the nine lines of progression were not justified by business necessity and "perpetuated past discrimination on the basis of sex and race." App. 32. The court enjoined the company and the union from further use of the six lines of progression. The Court of Appeals for the Fourth Circuit affirmed and remanded for further proceedings with respect to remedy, Patterson v. American Tobacco Co., 535 F.2d 257 (1976), and we denied a petition for certiorari. 429 U.S. 920, 97 S.Ct. 314, 50 L.Ed.2d 286 (1976). 14 On remand petitioners moved to vacate the District Court's 1974 orders and to dismiss the complaints on the basis of this Court's decision in Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), which held that § 703(h) insulates bona fide seniority systems from attack even though they may have discriminatory impact on minorities. The District Court denied the motions, holding that petitioners' seniority system "is not a bona fide system under Teamsters . . . because this system operated right up to the day of trial in a discriminatory manner." App. 110. A divided panel of the Court of Appeals agreed that "Teamsters requires no modification of the relief we approved with regard to . . . lines of progression . . .," because they were not part of a seniority system within the meaning of § 703(h). 586 F.2d 300, 303 (4th Cir. 1978). 15 The Court of Appeals reheard the case en banc. It did not decide whether the lines of progression were part of a seniority system. Instead, it held that even if the lines of progression were considered part of a seniority system, "Congress intended the immunity accorded seniority systems by § 703(h) to run only to those systems in existence at the time of Title VII's effective date, and of course to routine post-Act applications of such systems." 634 F.2d 744, 749 (4th Cir. 1980).2 We reverse. II 16 Petitioners argue that the plain language of § 703(h) applies to post-Act as well as pre-Act seniority systems. The respondent employees claim that the provision "provides a narrow exemption [from the ordinary discriminatory impact test] which was specifically designed to protect bona fide seniority systems which were in existence before the effective date of Title VII." Brief for Respondent Patterson et al. 29. Respondent EEOC supports the judgment below, but urges us to interpret § 703(h) so as to protect the post-Act application of a bona fide seniority system but not the post-Act adoption of a seniority system or an aspect of a seniority system. 17 As in all cases involving statutory construction, "our starting point must be the language employed by Congress," Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979), and we assume "that the legislative purpose is expressed by the ordinary meaning of the words used." Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962). Thus "[a]bsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2055, 64 L.Ed.2d 766 (1980). The plain language of § 703(h) is particularly cogent in light of the circumstances of its drafting. It was part of the Dirksen-Mansfield compromise bill which represented "not merely weeks, but months of labor." 110 Cong.Rec. 11935 (1964) (remarks of Sen. Dirksen). As Senator Dirksen explained: "I doubt very much whether in my whole legislative lifetime any measure has received so much meticulous attention. We have tried to be mindful of every word, of every comma, and of the shading of every phrase." Ibid. 18 On its face § 703(h) makes no distinction between pre- and post-Act seniority systems, just as it does not distinguish between pre- and post-Act merit systems or pre- and post-Act ability tests. The section does not take the form of a saving clause or a grandfather clause designed to exclude existing practices from the operation of a new rule. Other sections of Title VII enacted by the same Congress contain grandfather clauses, see § 701(b), 78 Stat. 253, as amended, 42 U.S.C. § 2000e-(b), a difference which increases our reluctance to transform a provision that we have previously described as "defining what is and what is not an illegal discriminatory practice. . .," Franks v. Bowman Transportation Co., 424 U.S. 747, 761, 96 S.Ct. 1251, 1262, 47 L.Ed.2d 444 (1976), from a definitional clause into a grandfather clause. 19 The EEOC's position, which is urged by Justice BRENNAN's dissent, is no more supportable. In permitting an employer to "apply" different terms of employment pursuant to a seniority system, § 703(h) does not distinguish between seniority systems adopted before and those adopted after the effective date of the Act. That distinction would require reading § 703(h) as though the reference to a seniority system were followed by the words "adopted prior to the effective date of this section." But the section contains no such limitation. To be cognizable, a claim that a seniority system has a discriminatory impact must be accompanied by proof of a discriminatory purpose. 20 Furthermore, for the purpose of construing § 703(h), the proposed distinction between application and adoption on its face makes little sense. The adoption of a seniority system which has not been applied would not give rise to a cause of action. A discriminatory effect would arise only when the system is put into operation and the employer "applies" the system. Such application is not infirm under § 703(h) unless it is accompanied by a discriminatory purpose. An adequate remedy for adopting a discriminatory seniority system would very likely include an injunction against the future application of the system and backpay awards for those harmed by its application. Such an injunction, however, would lie only if the requirement of § 703(h) that such application be intentionally discriminatory—were satisfied. 21 Under the EEOC's interpretation of the statute, plaintiffs who file a timely challenge to the adoption of a seniority system arguably would prevail in a Title VII action if they could prove that the system would have a discriminatory impact even if it was not purposefully discriminatory. Post, at 1546. See Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). On the other hand, employees who seek redress under Title VII more than 1803 days after the adoption of a seniority system—for example, all persons whose employment begins more than 180 days after an employer adopts a seniority system—would have to prove the system was intentionally discriminatory.4 Yet employees who prevailed by showing that a bona fide seniority system had a discriminatory impact although not adopted with discriminatory intent would not be entitled to an injunction forbidding the application of the system: § 703(h) plainly allows the application of such a seniority system. 22 A further result of the EEOC's theory would be to discourage unions and employers from modifying pre-Act seniority systems or post-Act systems whose adoption was not timely challenged. Any modification, if timely challenged, would be subject to the Griggs standard—even if it benefited persons covered by Title VII—thereby creating an incentive to retain existing systems which enjoy the protection of § 703(h).5 23 Statutes should be interpreted to avoid untenable distinctions and unreasonable results whenever possible. The EEOC's reading of § 703(h) would make it illegal to adopt, and in practice to apply, seniority systems that fall within the class of systems protected by the provision. We must, therefore, reject such a reading. III 24 Although the plain language of § 703(h) makes no distinction between pre-Act and post-Act seniority systems, the court below found support for its distinction between the two in the legislative history. Such an interpretation misreads the legislative history. 25 We have not been informed of and have not found a single statement anywhere in the legislative history saying that § 703(h) does not protect seniority systems adopted or modified after the effective date of Title VII. Nor does the legislative history reveal that Congress intended to distinguish between adoption and application of a bona fide seniority system. The most which can be said for the legislative history of § 703(h) is that it is inconclusive with respect to the issue presented in this case.6 26 As we have previously described, see Franks v. Bowman Transportation Co., 424 U.S., at 759-761, 96 S.Ct., at 1261-62, the initial bill7 passed by the House of Representatives on February 10, 1964, did not contain § 703(h) and neither the bill nor the majority Judiciary Committee Report8 even mentioned seniority. However, the House Minority Report warned that the bill, if enacted, would destroy seniority. H.R.Rep.No.914, 88th Cong., 1st Sess., 64-65 (1963), U.S.Code Cong. & Admin.News 1964, p. 2355. Following a 17-day debate over whether the bill should be referred to committee, the Senate voted to reject the motion to refer it to committee and began to formally consider the merits of the bill on March 30, 1964. Meanwhile, a bipartisan group led by Senators Dirksen, Mansfield, Humphrey, and Kuchel worked to reach agreement on amendments to the House bill which would ensure its passage. Vaas, Title VII: Legislative History, 7 B.C.Ind. & Com.L.Rev. 431, 445 (1966). The Mansfield-Dirksen compromise, which contained § 703(h), was introduced on the Senate floor in the form of a substitute bill on May 26, 1964.9 Prior to the introduction of the Mansfield-Dirksen substitute, supporters of the House bill responded to charges that it would destroy existing seniority rights.10 On April 8, 1964, Senator Clark made a speech in which he stated that "it is clear that the bill would not affect seniority at all." 110 Cong.Rec. 7207 (1964). In support of his conclusion, he inserted three documents into the Congressional Record which this Court has characterized as "authoritative indicators" of the purpose of § 703(h),11 Teamsters v. United States, 431 U.S., at 352, 97 S.Ct., at 1863, and which the court below relied upon for its conclusion that post-Act seniority systems were not intended to be protected by § 703(h). See 634 F.2d, at 749-750, n. 5. 27 The first document was a Justice Department memorandum which stated, in part, that "Title VII would have no effect on seniority rights existing at the time it takes effect."12 The second document was an interpretive memorandum which had been prepared by Senator Clark and Senator Case, and it also said Title VII would "have no effect on established seniority rights."13 Senator Clark also introduced written answers to questions propounded by Senator Dirksen which included the statement, "Seniority rights are in no way affected by the bill."14 28 On the basis of the statements that Title VII would not affect "existing" and "established" seniority rights, respondents infer that Title VII would affect seniority rights which were not "established" or "existing" when the Act became effective. Such an inference is unjustified. While the materials which Senator Clark inserted into the Congressional Record did speak in terms of Title VII not affecting "vested," "existing," or "established" seniority rights, they did so because they were responding to a specific charge made by the bill's opponents, namely, that the bill would destroy existing seniority rights. Had Senator Clark intended that the bill not protect post-Act seniority systems, it is highly unlikely he would have stated on the floor of the Senate that "the bill would not affect seniority at all,"15 110 Cong.Rec. 7207 (1964), or introduced a written response to a question posed by Senator Dirksen which said: 29 "Seniority rights are in no way affected by the bill. If under a 'last hired, first fired' agreement a Negro happens to be the 'last hired,' he can still be 'first fired' so long as it is done because of his status as 'last hired' and not because of his race." Id., at 7217. 30 Respondents' argument also ignores numerous other references to seniority by proponents of Title VII which were couched in terms of "seniority" rather than "existing seniority rights." See, e.g., id., at 5423 (remarks of Sen. Humphrey); id., at 6564 (remarks of Sen. Kuchel); id., at 6565-6566 (memorandum prepared by House Republican sponsors); id., at 11768 (remarks of Sen. McGovern). In addition, the few references to seniority after § 703(h) was added to the bill are to the effect that "the Senate substitute bill expressly protects valid seniority systems." Id., at 14329 (letter from Sen. Dirksen to Sen. Williams). See also id., at 14331 (remarks of Sen. Williams). 31 Going behind the plain language of a statute in search of a possibly contrary congressional intent is "a step to be taken cautiously" even under the best of circumstances. Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 26, 97 S.Ct. 926, 941, 51 L.Ed.2d 124 (1977). "[I]n light of its unusual legislative history and the absence of the usual legislative materials," Franks v. Bowman Construction Co., 424 U.S., at 761, 96 S.Ct., at 1262, we would in any event hesitate to give dispositive weight to the legislative history of § 703(h). More importantly, however, the history of § 703(h) does not support the far-reaching limitation on the terms of § 703(h) announced by the court below and urged by respondents. The fragments of legislative history cited by respondents, regardless of how liberally they are construed, do not amount to a clearly expressed legislative intent contrary to the plain language of the statute. Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S., at 108, 100 S.Ct., at 2056. IV 32 Our prior decisions have emphasized that "seniority systems are afforded special treatment under Title VII itself," Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 81, 97 S.Ct. 2264, 2275, 53 L.Ed.2d 113 (1977), and have refused to narrow § 703(h) by reading into it limitations not contained in the statutory language. In Teamsters v. United States, supra, we held that § 703(h) exempts from Title VII the disparate impact of a bona fide seniority system even if the differential treatment is the result of pre-Act racially discriminatory employment practices. Similarly, by holding that "[a] discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed," United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977), the Court interpreted § 703(h) to immunize seniority systems which perpetuate post-Act discrimination. Thus taken together, Teamsters and Evans stand for the proposition stated in Teamsters that "[s]ection 703(h) on its face immunizes all bona fide seniority systems, and does not distinguish between the perpetuation of pre- and post-Act" discriminatory impact. Teamsters, 431 U.S., at 348, n. 30, 97 S.Ct., at 1861, n. 30 (emphasis added).16 Section 703(h) makes no distinction between seniority systems adopted before its effective date and those adopted after its effective date. Consistent with our prior decisions, we decline respondents' invitation to read such a distinction into the statute. 33 Seniority provisions are of "overriding importance" in collective bargaining, Humphrey v. Moore, 375 U.S. 335, 346, 84 S.Ct. 363, 370, 11 L.Ed.2d 370 (1964), and they "are universally included in these contracts." Trans World Airlines, Inc. v. Hardison, supra, 432 U.S. at 79, 97 S.Ct., at 2274. See also Aaron, Reflections on the Legal Nature and Enforceability of Seniority Rights, 75 Harv.L.Rev. 1532, 1534 (1962). The collective-bargaining process "lies at the core of our national labor policy. . . ." Trans World Airlines, Inc. v. Hardison, supra, 432 U.S., at 79, 97 S.Ct. at 2274. See, e.g., 29 U.S.C. § 151. Congress was well aware in 1964 that the overall purpose of Title VII, to eliminate discrimination in employment, inevitably would, on occasion, conflict with the policy favoring minimal supervision by courts and other governmental agencies over the substantive terms of collective-bargaining agreements. California Brewers Assn. v. Bryant, 444 U.S. 598, 608, 100 S.Ct. 814, 820, 63 L.Ed.2d 55 (1980). Section 703(h) represents the balance Congress struck between the two policies, and it is not this Court's function to upset that balance.17 34 Because a construction of § 703(h) limiting its application to seniority systems in place prior to the effective date of the statute would be contrary to its plain language, inconsistent with our prior cases, and would run counter to the national labor policy, we vacate the judgment below and remand for further proceedings consistent with this opinion.18 35 So ordered. 36 Justice BRENNAN, with whom Justice MARSHALL and Justice BLACKMUN join, dissenting. 37 Purporting to construe the plain language of § 703(h) of Title VII, the Court today holds that seniority plans adopted after Title VII became effective are not subject to challenge under the disparate-impact standard of Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). In failing to distinguish for purposes of § 703(h) between suits challenging the adoption of a seniority plan and those challenging its subsequent application —a distinction urged by the Equal Employment Opportunity Commission (EEOC)—the Court turns a blind eye to both the language and legislative history of the statutory provision. Section 703(h) is by its very terms of relevance only where the application of a seniority plan is challenged. The provision reflects Congress' desire to protect vested seniority rights; Congress did not seek to ensure the vesting of new rights that are the byproduct of discrimination. Because the Court ignores this fundamental distinction between challenges to the adoption, and challenges to the application, of seniority plans, I dissent. 38 * Up until 1963, the American Tobacco Co. and the union serving as collective-bargaining agent for the hourly paid production workers at the company's two Richmond plants openly discriminated on the basis of race with respect to every aspect of employment at the two plants—"job assignments, cafeterias, restrooms, lockers, and plant entrances." Patterson v. American Tobacco Co., 535 F.2d 257, 263 (CA4 1976). White employees were generally assigned to jobs in the fabrication departments; black employees were assigned to lower paying jobs in the prefabrication departments. See ibid.; App. 33-34. In 1963, under Government pressure, the company and union altered somewhat the manner of computing seniority and determining promotions. Nevertheless, for the next five years virtually all of the vacancies in the fabrication departments were filled by white employees. Thus, as of 1968, the fabrication departments were still staffed almost entirely by white employees; the prefabrication departments remained predominately composed of black employees. See 535 F.2d, at 263. 39 In 1968, with the assent of the union, the company established nine lines of job progression. Each line generally consisted of two jobs, and one could assume the "top" job only after having worked at least one day in a "bottom" job. Of the six lines of progression at issue here, four consisted of historically white "top" jobs from the fabrication departments linked with historically white "bottom" jobs from the fabrication departments. The remaining two lines involved "top" jobs from the prefabrication departments linked with historically black "bottom" jobs from the prefabrication departments. Not surprisingly, the District Court determined—and the Court of Appeals agreed—that the six lines of progression were unlawful under Griggs v. Duke Power Co., supra, because they perpetuated past discrimination on the basis of race and were unsupported by any business justification. See App. 32; 535 F.2d, at 264. But today this Court, relying on § 703(h) of Title VII, holds that in the event these lines are determined on remand to be part of a seniority system,1 they must be sustained unless respondents can prove that petitioners acted with discriminatory intent in formulating them.2 II 40 The Court properly treats this case as one of statutory construction. The language of § 703(h) is as follows: 41 "[I]t shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin . . . ." 78 Stat. 257, as amended, 42 U.S.C. § 2000e-2(h) (emphasis added). 42 Despite this language, the Court construes § 703(h) to embrace challenges to the adoption of seniority systems as well as to their application. But § 703(h) describes its own ambit solely in terms of application: The provision declares it not unlawful "for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority . . . system." Even if one were able to enlarge the definition of "apply" to include "adopt," it would require a much greater feat of legerdemain to explain how a decision to adopt a seniority system can be made "pursuant to" the same seniority system. 43 It is also significant that § 703(h) refers only to employers' practices. Although the application of a seniority system is ordinarily the responsibility of the employer alone, the decision to adopt a particular plan is made by the employer and the union, both of whom may be liable for employment discrimination under Title VII. See 42 U.S.C. §§ 2000e-2(a), (c). If Congress had intended § 703(h) to shield the adoption of a new seniority system, agreed upon by both the employer and union after Title VII became effective, Congress would have referred to unions as well as employers in the exempting provision.3 III 44 The Court's construction of § 703(h) might be understandable if the legislative history clearly indicated that Congress did not intend to distinguish the adoption of a seniority plan from its subsequent application. But the Court finds no such indication: "The most which can be said for the legislative history of § 703(h) is that it is inconclusive with respect to the issue . . . ." Ante, at 1539. Viewed in the full context of Title VII, the Court's rejection of a narrow construction of the § 703(h) exemption is truly remarkable. 45 Through Title VII Congress sought in the broadest terms to prohibit and remedy discrimination. See, e.g., Franks v. Bowman Transportation Co., 424 U.S. 747, 763, 96 S.Ct. 1251, 1263, 47 L.Ed.2d 444 (1976); xander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974). In order to give this congressional intent its full and proper meaning, Title VII must "be given a liberal interpretation . . . [and] exemptions from its sweep . . . be narrowed and limited to effect the remedy intended." Piedmont & Northern R. Co. v. ICC, 286 U.S. 299, 311-312, 52 S.Ct. 541, 545, 76 L.Ed. 1115 (1932). See also Spokane & Inland R. Co. v. United States, 241 U.S. 344, 350, 36 S.Ct. 668, 671, 60 L.Ed. 1037 (1916); United States v. Dickson, 15 Pet. 141, 165, 10 L.Ed. 689 (1841). Accordingly, § 703(h) should not be construed to further objectives beyond those which Congress expressly wished to serve. As demonstrated by the legislative history that follows, Congress' basic purpose in adding the provision was to protect the expectations that employees acquire through the continued operation of a seniority system. A timely challenge to the adoption of a seniority plan may forestall discrimination before such legitimate employee expectations have arisen.4 46 Section 703(h) was not included in the early legislative versions of Title VII. It was added only after fears were expressed concerning the possible impact of Title VII on seniority rights and existing seniority systems. See Franks v. Bowman Transportation Co., supra, 424 U.S. at 759, 96 S.Ct., at 1261.5 The oppo nents of Title VII charged that the Act would "seriously impair . . . [t]he seniority rights of employees in corporate and other employment . . . ." H.R.Rep.No.914, 88th Cong., 1st Sess., 64-65 (1963) (Minority Report), U.S.Code Cong. & Admin.News 1964, p. 2433. These opponents apparently believed that if Title VII were adopted, the "benefits which organized labor ha[d] attained through the years would no longer be matters of 'right' . . . ." 110 Cong.Rec. 486 (1964) (statement of Sen. Hill). 47 The defenders of Title VII responded in strong terms to the charge that "[T]itle VII would undermine the vested rights of seniority." Id., at 7206 (statement of Sen. Clark, quoting Sen. Hill). According to the Act's proponents, this charge was a "cruel hoax . . . generat[ing] unwarranted fear among those individuals who must rely upon their job or union membership to maintain their existence." Id., at 9113 (statement of Sen. Keating). The Act's supporters replied that it was simply untrue that under Title VII "seniority systems would be abrogated and . . . white men's jobs would be taken and turned over to Negroes." Id., at 11471 (statement of Sen. Javits).6 Thus, with some exaggeration, the proponents of Title VII suggested that Title VII would not affect employees' expectations that arose from the operation of seniority systems.7 48 The interpretive memorandum introduced during the Senate debate by Senator Clark, to which the Court makes reference, ante, at 1539-1540, only reinforces my view that Congress saw § 703(h) as focusing on the protection of employee expectations that develop during the pendency of a seniority plan. The memorandum stated: "Title VII would have no effect on established seniority rights. Its effect is prospective and not retrospective." 110 Cong.Rec. 7213 (1964) (emphasis added).8 The other two memoranda submitted by Senator Clark, also quoted by the Court, ante, at 1540, speak in similar terms of protecting vested seniority rights.9 49 While this legislative history does not contain any explicit reference to the distinction between adoption and application urged by the EEOC, it surely contains no suggestion that Congress intended to treat the decision to adopt a seniority plan any differently from the decision to adopt a discriminatory employment practice unrelated to seniority. Rather, the legislative history indicates that Congress was concerned only about protecting the good-faith expectations of employees who rely on the continued application of established, bona fide seniority systems.10 IV 50 The Court ultimately rejects the EEOC's interpretation of § 703(h) because, in the Court's view, that interpretation is "untenable" and will bring about "unreasonable results." Ante, at 1538. The reasons underlying the Court's view, unrelated to the language and legislative history of § 703(h), are to my mind without force. 51 First, the Court suggests that a challenge concerning a seniority system cannot be brought before the application of that system, because "[a] discriminatory effect would arise only when the system is put into operation and the employer 'applies' the system." Ante, at 1538. This reasoning is superficial at best. The Court has recently rejected such reasoning in determining when Title VII's statute of limitations begins to run: " 'The proper focus is upon the . . . discriminatory acts, not upon the time at which the consequences of the act [become] painful.' " Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980), quotingAbramson v. University of Hawaii, 594 F.2d 202, 209 (CA9 1979). See alsoChardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 29, 71 L.Ed.2d 6 (1981).11 In any event, the Court's analysis overlooks the immediate impact resulting from the adoption of a particular seniority system in a collective-bargaining agreement: The employees in the bargaining unit are bound by the agreement. See generally Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50, 95 S.Ct. 977, 43 L.Ed.2d 12 (1975). 52 The Court also notes that "[a]n adequate remedy for adopting a discriminatory seniority system would very likely include an injunction against the future application of the system and backpay awards for those harmed by its application." Ante, at 1538. From this premise the Court concludes that § 703(h) must necessarily cover the adoption of seniority systems. The apparent basis for the Court's leap from this premise to its conclusion is the assumption that "[s]uch an injunction . . . would lie only if the requirement[s] of § 703(h) . . . were satisfied." Ante, at 1538. But the Court's assumption is undercut by Franks v. Bowman Transportation Co. In that case the Court rejected the theory that § 703(h) served "to qualify or proscribe relief otherwise appropriate under the remedial provisions of Title VII, § 706(g), 42 U.S.C. § 2000e-5(g)." 424 U.S., at 758, 96 S.Ct., at 1261. Section 703(h) merely "delineates which employment practices are illegal and thereby prohibited and which are not." Ibid. Ignoring the difference between violation and remedy, the Court today adopts the very theory rejected in Bowman ; it holds that § 703(h) bars a challenge to the adoption of a seniority system because the remedy for a successful challenge to such adoption might resemble the remedy for a challenge to the application of a seniority system. 53 Finally, the Court offers a policy reason for not distinguishing between adoption and application: that if adoption were not covered by § 703(h), unions and employers would be reluctant to modify "pre-Act seniority systems or post-Act systems whose adoption was not timely challenged." Ante, at 1538. The Court's foray into the field of policy seems to me to stand as an excellent example of the propriety of deference to agency expertise. For it is obvious that while the modification of a pre-existing seniority plan would permit a challenge under the Griggs standard to the modified provision, the other provisions of the seniority system would continue to receive the protection of § 703(h). Furthermore, to the extent that a pre-existing seniority system is modified to allow protected minorities to overcome prior discrimination, the protection of § 703(h) would not even be necessary; under Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), such affirmative steps taken to assist minorities do not run afoul of any provision of Title VII. And with respect to those modifications not protected under Weber, yet violating the Griggs standard, adoption should surely be discouraged—not encouraged. V 54 In sum, I find no basis in either the language or legislative history of § 703(h) for protecting the decision to adopt a particular seniority system from timely challenge under Griggs. In the instant case, respondents have successfully demonstrated, to the satisfaction of the District Court and Court of Appeals, that the six lines of progression under challenge violate the Griggs standard. Because there is some question as to whether the respondent employees timely filed their charges,12 I would remand the case for further proceedings consistent with this opinion. 55 Justice STEVENS, dissenting. 56 Section 703(h) provides an affirmative defense for an employer whose administration of a bona fide seniority or merit system has produced consequences that appear to discriminate against a member of a particular race, religion, or sex.1 Thus, for example, if an employee proves that he was denied a promotion to a particular job and that the job was filled by a member of another race or another sex, the employer may defend on the ground that he was implementing a bona fide seniority or merit system. This affirmative defense is available, however, only if the merit or seniority system is "bona fide," regardless of the date on which it was adopted. 57 It is clear to me that a seniority system that is unlawful at the time it is adopted cannot be "bona fide" within the meaning of § 703(h).2 Thus, a post-Act seniority system cannot be bona fide if it was adopted in violation of Title VII; such a system would not provide an employer with a defense under § 703(h). Section 703(h) itself does not address the question of how to determine whether the adoption of a post-Act merit or seniority system is unlawful.3 Since the adoption of a seniority system is in my opinion an employment practice subject to the requirements of Title VII, it is reasonable to infer that the same standard that applies to hiring, promotion, discharge, and compensation practices also applies to the adoption of a merit or seniority system.4 58 This inference is confirmed by the fact that § 703(h) does not merely provide an affirmative defense for seniority systems; it also provides a similar defense for merit systems and professionally developed ability tests. Indeed, the basic standard of Title VII liability was enunciated in a case in which § 703(h) provided a limited affirmative defense. In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, a case involving employer reliance on a "professionally developed ability test," the Court held: 59 "The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited." Id., at 431, 91 S.Ct., at 853. 60 The Court in Griggs did not suggest that this standard derived from the scope of the affirmative defense afforded to ability tests by § 703(h); rather, the Court concluded that the standard reflected the central "objective of Congress . . . 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." Id., at 429-430, 91 S.Ct., at 852-53. 61 The Court in this case, however, reads the "specific intent" proviso of § 703(h) as though it were intended to define the proper standard for measuring any challenge to a merit or seniority system.5 This reading of the proviso is entirely unwarranted. The proviso is a limitation on the scope of the affirmative defense. It addresses the problem created by pre-Act seniority systems, which of course were "lawful" because adopted before the Act became effective and therefore presumptively "bona fide" within the meaning of § 703(h). As the legislative history makes clear, Congress sought to protect seniority rights that had accrued before the effective date of the Act, but it did not want to extend that protection to benefits under seniority systems that were the product of deliberate racial discrimination. The obvious purpose of the proviso was to place a limit on the protection given to pre-Act seniority systems. The Court's broad reading of the proviso ignores both its context in § 703(h) and the historical context in which it was enacted. 62 The Court's strained reading of the statute may be based on an assumption that if the Griggs standard were applied to the adoption of a post-Act seniority system, most post-Act systems would be unlawful since it is virtually impossible to establish a seniority system whose classification of employees will not have a disparate impact on members of some race or sex. Under Griggs, however, illegality does not follow automatically from a disparate impact. If the initiation of a new seniority system—or the modification of an existing system—is substantially related to a valid business purpose, the system is lawful. "The touchstone is business necessity." Griggs, supra, at 431, 91 S.Ct. at 853; cf. New York Transit Authority v. Beazer, 440 U.S. 568, 587, 99 S.Ct. 1355, 1366, 59 L.Ed.2d 587. A reasoned application of Griggs would leave ample room for bona fide systems; the adoption of a seniority system often may be justified by the need to induce experienced employees to remain, to establish fair rules for advancement, or to reward continuous, effective service. I can find no provision of Title VII, however, that grants a blanket exemption to the initiation of every seniority system that has not been conceived with a deliberate purpose to discriminate because of race or sex. 63 In this case, although I disagree with the reasoning of the Court of Appeals, I would affirm its judgment. That court has held that the six lines of progression at issue violated Title VII because they had a demonstrated disparate impact on protected employees that was not justified by any legitimate business purpose.6 Although I do not question the applicability of § 703(h) to bona fide post-Act seniority systems, that section is not available as a defense in this case because the lines of progression—even if a seniority system—were adopted in violation of Title VII and therefore are not "bona fide."7 64 Accordingly, I respectfully dissent. 1 Title VII became effective July 2, 1965, one year after its enactment. 2 The en banc court remanded the case to the District Court for additional proceedings to determine whether the plantwide seniority system in effect since 1963 is a bona fide seniority system within the contemplation of § 703(h). See 634 F.2d, at 750. This issue is not before the Court. 3 Prior to 1972, Title VII generally required charges to be filed within 90 days of an alleged discriminatory practice. Section 706(e), 78 Stat. 260, was amended in 1972. It now requires aggrieved persons to file a charge "within one hundred and eighty days after the alleged unlawful employment practice occurred. . . ." 42 U.S.C. § 2000e-5(e). 4 The facts of this case give rise to just such an anomaly under the EEOC theory. The respondent employees filed race discrimination charges within 90 days of the adoption of the lines of progression but sex discrimination charges were filed more than 90 days after the adoption. Under the EEOC theory, the lines of progression would be analyzed under two different tests: the Griggs impact test and the § 703(h) intentional discrimination test. 5 "Significant freedom must be afforded employers and unions to create differing seniority systems." California Brewers Assn. v. Bryant, 444 U.S. 598, 608, 100 S.Ct. 814, 820, 63 L.Ed.2d 55 (1980). Respondents' interpretation of § 703(h) would impinge on that freedom by discouraging modification of existing seniority systems or adoption of new systems. 6 Justice BRENNAN's dissent admits that the legislative history "does not contain any explicit reference to the distinction between adoption and application." Post, at 1545. Nor is there explicit basis for the proposition that § 703(h) applies only to those plans "adopted" prior to the effective date of the Act. It is nevertheless claimed that the legislative history supports reading this distinction into the statute. Post, at 1545, n. 8. Had Congress intended so fundamental a distinction, it would have expressed that intent clearly in the statutory language or the legislative history. It did not do so, however, and it is not this Court's function "to sit as a super-legislature," Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 1680, 14 L.Ed.2d 510 (1965), and create statutory distinctions where none were intended. 7 H.R. 7152, 88th Cong., 1st Sess. (1963). 8 H.R.Rep.No.914, 88th Cong., 1st Sess. (1963). 9 110 Cong.Rec. 11926 (1964). 10 For examples of charges that the bill would destroy existing seniority rights, see, e.g., H.R.Rep.No.914, supra, at 64-66 (Minority Report); 110 Cong.Rec. 486-489 (1964) (remarks of Sen. Hill); id., at 11471 (remarks of Sen. Javits discussing charges made by Governor Wallace). 11 Senator Humphrey, one of the drafters of the Mansfield-Dirksen substitute, explained that § 703(h) did not alter the meaning of Title VII but "merely clarifie[d] its present intent and effect." Id., at 12723. Therefore statements made prior to the introduction of § 703(h) by proponents of Title VII are evidence of the meaning of § 703(h). 12 Id., at 7207. The full text of the statement with respect to seniority may be found in Franks v. Bowman Transportation Co., 424 U.S. 747, 760, n. 16, 96 S.Ct. 1251, 1262, n. 16, 47 L.Ed.2d 444 (1976). 13 110 Cong.Rec. 7213 (1964). The full text of the statement with respect to seniority may be found in Franks v. Bowman Transportation Co., supra, at 759, n. 15, 96 S.Ct., at 1261, n. 15. 14 110 Cong.Rec. 7217 (1964). The questions and answers with respect to seniority may be found in Franks v. Bowman Transportation Co., supra, at 760-761, n. 16, 96 S.Ct., at 1262, n. 16. 15 Strictly speaking, Senator Clark's statement that Title VII would not affect seniority is incorrect. Title VII does affect seniority rights, for Franks v. Bowman Transportation Co., supra, allows awards of retroactive seniority to victims of unlawful discrimination. However, Senator Clark's technical error does not alter our conclusion that he and other key proponents of the bill intended that it have minimal impact on seniority systems. 16 Nowhere in Teamsters v. United States does the Court indicate when the seniority system at issue there was adopted, and examination of the record illustrates the difficulty of fixing an adoption date. Article V of the National Motor Freight Agreement of 1964 contains a seniority provision subject to modification by area agreements and local union riders. See Brief for Petitioner Teamsters, O.T.1976, No. 75-636, pp. 24-25. However, National Motor Freight Agreements are of 3-year duration, and the 1970 Agreement was in effect when the complaint was filed. If a seniority system ceases to exist when the collective-bargaining agreement which creates it lapses, then the seniority system in Teamsters was adopted post-Title VII. On the other hand, if in practice the seniority system was continuously in effect from 1964, it can be argued that its adoption predates Title VII. However, Teamsters places no importance on the date the seniority system was adopted, and we follow Teamsters by refusing to distinguish among seniority systems based on date of adoption. Given the difficulty of determining when one seniority system ends and another begins and the lack of legislative guidance, we think it highly unlikely Congress intended for courts to distinguish between pre-Act and post-Act seniority systems. 17 Justice BRENNAN's dissent makes no mention of the importance which Congress and this Court have accorded to seniority systems and collective bargaining. It reads the legislative history as showing that Congress' basic purpose in enacting § 703(h) was to protect employee expectations. Post, at 1544-1545. In doing so, it ignores the policy favoring minimal governmental intervention in collective bargaining. 18 All parties agree that on remand the court should decide whether the lines of progression are part of a seniority system, and if so, whether they are bona fide within the meaning of § 703(h). We decline to reach those issues because, as the court below noted, their resolution requires additional factual development. See 634 F.2d, at 749, n. 3. 1 The Court of Appeals assumed, but did not hold, that the lines of progression were part of a "seniority . . . system" within the meaning of § 703(h). See 634 F.2d 744, 749, and n. 3 (1980). 2 The District Court, applying Teamsters v. United States, 431 U.S. 324, 346, n. 28, 97 S.Ct. 1843, 1860, n. 28, 52 L.Ed.2d 396 (1977), apparently made such a finding of discriminatory intent after the petitioners moved to vacate, in light of Teamsters, the decree that the court had entered earlier. See App. 110. The Court of Appeals, sitting en banc, did not review this finding, but held instead that § 703(h) is inapplicable to seniority systems adopted after Title VII became effective. 3 It is true, of course, that despite this lack of reference, § 703(h) may in practice afford unions some protection. Section 703(c)(3) of Title VII makes it unlawful for a union "to cause or attempt to cause an employer to discriminate against an individual in violation of this section." 78 Stat. 256, 42 U.S.C. § 2000e-2(c)(3). To the extent that an employer's practice does not violate Title VII by virtue of § 703(h), the union's involvement in that practice would not likely be viewed as giving rise to liability under § 703(c)(3). 4 Currently, a charge of discrimination in violation of Title VII must generally "be filed within one hundred and eighty days after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e). At the time the present action arose, charges had to be filed within 90 days of the occurrence of the unlawful employment practice. § 706(d), 78 Stat. 260. Expectations may arise, of course, before a timely charge is filed, but such expectations are hardly substantial. And the notice provided by the filing of charges serves to reduce the likelihood of employees acquiring unjustified expectations concerning seniority rights during any ensuing investigation and litigation of the charges. 5 As the Court correctly notes, because § 703(h) was merely intended to clarify, not alter, the effect of Title VII, the "statements made prior to the introduction of § 703(h) by proponents of Title VII are evidence of the meaning of § 703(h)." Ante, at 1539, n. 11. 6 See also 110 Cong.Rec. 1518 (1964) (statement of Rep. Celler) ("It has been asserted also that the bill would destroy worker seniority systems and employee rights vis-a-vis the union and employer. This again is wrong"); id., at 6549 (statement of Sen. Humphrey) ("The full rights and privileges of union membership . . . will in no way be impaired"); id., at 11486 (newsletter from Sen. Humphrey) ("The bill does not permit the Federal Government to destroy the job seniority rights of either union or nonunion employees"). 7 In at least two situations, employee expectations are clearly subject to adjustment and perhaps impairment. First, a violation of Title VII may merit an award of retroactive seniority relief although "such relief diminishes the expectations of other, arguably innocent, employees . . . ." Franks v. Bowman Transportation Co., 424 U.S. 747, 774, 96 S.Ct. 1251, 1269, 47 L.Ed.2d 444 (1976). Second, where a seniority system is not bona fide within the meaning of § 703(h), both the adoption and application of the system can be challenged. 8 In quoting the interpretive memorandum, the Court omits the italicized sentence, for obvious reasons. The statement that the effect of Title VII on seniority rights would be "prospective and not retrospective" can be read in two different ways: (1) that, unlike seniority systems adopted prior to the effective date of Title VII, those created after Title VII became effective would be open to challenge on the same grounds as all other employment practices, or (2) that before substantial expectations have arisen through the application of a seniority system, the adoption of the system can be challenged. Both of these readings are inconsistent with the Court's holding in the instant case. Because the language of § 703(h) does not expressly distinguish between seniority systems adopted prior to the effective date, and those adopted after, I am inclined to reject the first interpretation, as is the Court. The second interpretation, however, is consistent with both the language and purposes of § 703(h). 9 The Justice Department memorandum stated: "First, it has been asserted that title VII would undermine vested rights of seniority. This is not correct. Title VII would have no effect on seniority rights existing at the time it takes effect." 110 Cong.Rec. 7207 (1964). The memorandum containing Senator Clark's response to Senator Dirksen's memorandum noted: "Seniority rights are in no way affected by the bill. . . . The bill is not retroactive, and it will not require an employer to change existing seniority lists." Id., at 7217. 10 In Franks v. Bowman Transportation Co., supra, the Court reviewed this same legislative history, and similarly concluded that "the thrust of the section is directed toward defining what is and what is not an illegal discriminatory practice in instances in which the post-Act operation of a seniority system is challenged as perpetuating the effects of discrimination occurring prior to the effective date of the Act." 424 U.S., at 761, 96 S.Ct., at 1262 (emphasis added). 11 It is therefore not surprising that lower courts have held that active employees may challenge a discriminatory retirement plan. See, e.g., Bartmess v. Drewrys U. S. A., Inc., 444 F.2d 1186, 1188 (CA7 1971). 12 The majority opinion for the Court of Appeals stated that the lines of progression were instituted in January 1968, 634 F.2d at 749, some one year before the charges of racial discrimination were filed with the EEOC. But as the opinion for this Court indicates, the facts in the record suggest that the lines of progression were not even proposed until November 1968. Ante, at 1536. Because it was immaterial to the Court of Appeals whether the lines were adopted in either January 1968 or sometime after November 1968, the court should be given the opportunity to redetermine when they were adopted. Contrary to the suggestion of the Court, ante, at 1541, n. 16, such a determination is not difficult; courts routinely determine, for purposes of Title VII's time limitations, when a discriminatory practice was adopted. 1 The full text of that section provides: "Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for 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. It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 206(d) of title 29." 42 U.S.C. § 2000e-2(h). 2 Of course, for a merit or seniority system to be "bona fide" it also must be an otherwise neutral, rational system. Teamsters v. United States, 431 U.S. 324, 353, 97 S.Ct. 1843, 1863, 52 L.Ed.2d 396; see also id., at 355-356, 97 S.Ct., at 1864-65. In Teamsters, the Court held that "an otherwise neutral, legitimate seniority system does not become unlawful under Title VII simply because it may perpetuate pre-Act discrimination." Id., at 353-354, 97 S.Ct., at 1863-64 (emphasis added). If a seniority system is not "legitimate," it is not "bona fide" within the meaning of the Act. 3 The section simply provides that "[n]otwithstanding any other provision of this subchapter," certain employment practices shall not be unlawful. See n. 1, supra. 4 Section 703(a)(2) of the Act provides that it shall be an unlawful employment practice for an employer "to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(2). The adoption of a seniority system establishes a set of rules that classifies employees in ways that could deprive or tend to deprive an individual of employment opportunities. 5 "To be cognizable, a claim that a seniority system has a discriminatory impact must be accompanied by proof of a discriminatory purpose." Ante, at 1538. 6 See Patterson v. American Tobacco Co., 535 F.2d 257, 264-265 (CA4 1976), cert. denied, 429 U.S. 920, 97 S.Ct. 314, 50 L.Ed.2d 286. 7 Unlike Justice BRENNAN, I believe that it is unnecessary to remand this case for a determination of whether a challenge to the adoption of the lines of progression was filed timely. See ante, at 1546 (BRENNAN, J., dissenting). Since in my opinion a seniority system that was adopted in violation of Title VII cannot be "bona fide," such a system is never entitled to the affirmative defense of § 703(h).

12

456 U.S. 91 102 S.Ct. 1549 71 L.Ed.2d 770 Lois Mae MILLS, Appellant,v.Dan HABLUETZEL. No. 80-6298. Argued Jan. 12, 1982. Decided April 5, 1982. Syllabus A Texas statute (§ 13.01) provides that a paternity suit to identify the natural father of an illegitimate child for purposes of obtaining support must be brought before the child is one year old, or the suit is barred. Appellant mother of an illegitimate child and the Texas Department of Human Resources brought suit in a Texas court on behalf of the child to establish that appellee was his natural father. The trial court dismissed the suit under § 13.01 because the child was one year and seven months old when the suit was filed. The Texas Court of Civil Appeals affirmed, holding that the one-year limitation was not tolled during minority and did not violate the Equal Protection Clause of the Fourteenth Amendment. Held: The one-year period for establishing paternity denies illegitimate children in Texas the equal protection of law. Pp. 97-101. (a) A State that grants an opportunity for legitimate children to obtain paternal support must also grant that opportunity to illegitimate children, Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56, and this latter opportunity must be more than illusory, although it need not be coterminous with the procedures accorded legitimate children. Pp. 97-98. (b) The period for obtaining support granted by Texas to illegitimate children must be of sufficient duration to present a reasonable opportunity for those with an interest in such children to assert claims on their behalf. And the time limitation on that opportunity must be substantially related to the State's interest in avoiding the litigation of stale or fraudulent claims. Section 13.01 fails to meet either of these requirements and thus denies equal protection. Pp. 98-101. Reversed and remanded. Michael S. Mankins, Corpus Christi, Tex., for appellant. Lola L. Bonner, Rockport, Tex., for appellee. Justice REHNQUIST delivered the opinion of the Court. 1 This Court has held that once a State posits a judicially enforceable right of children to support from their natural fathers, the Equal Protection Clause of the Fourteenth Amendment prohibits the State from denying that same right to illegitimate children. Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973). In this case we are required to determine the extent to which the right of illegitimate children recognized in Gomez may be circumscribed by a State's interest in avoiding the prosecution of stale or fraudulent claims. The Texas Court of Civil Appeals, Thirteenth Supreme Judicial District, upheld against federal constitutional challenges the State's one-year statute of limitation for suits to identify the natural fathers of illegitimate children. We noted probable jurisdiction. 451 U.S. 936, 101 S.Ct. 2014, 68 L.Ed.2d 322. We begin by reviewing the history of the statute challenged by appellant. 2 * Like all States, Texas imposes upon parents the primary responsibility for support of their legitimate children. See Tex.Fam.Code Ann. (Code) §§ 4.02, 12.04(3) (1975 and Supp.1982). That duty extends beyond the dissolution of marriage, Code § 14.05, regardless of whether the parent has custody of the child, Hooten v. Hooten, 15 S.W.2d 141 (Tex.Civ.App.1929), and may be enforced on the child's behalf in civil proceedings. Code § 14.05(a). Prior to our decision in Gomez, Texas recognized no enforceable duty on the part of a natural father to support his illegitimate children. See Home of the Holy Infancy v. Kaska, 397 S.W.2d 208 (Tex.1965); Lane v. Phillips, 69 Tex. 240, 6 S.W. 610 (1887); Bjorgo v. Bjorgo, 391 S.W.2d 528 (Tex.Civ.App.1965). A natural father could even assert illegitimacy as a defense to prosecution for criminal nonsupport. See Curtin v. State, 155 Tex.Cr.R. 625, 238 S.W.2d 187 (1950). 3 Reviewing the Texas law in Gomez, we held that "a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally." 409 U.S., at 538, 93 S.Ct., at 875. "[O]nce a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers," we stated, "there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother." Ibid. Although we recognized that "the lurking problems with respect to proof of paternity . . . are not to be lightly brushed aside," we concluded that they did not justify "an impenetrable barrier that works to shield otherwise invidious discrimination." Ibid. Accordingly, we held Texas' denial of support rights to illegitimate children to be a denial of equal protection of law. 4 In response to our decision in Gomez, the Texas Legislature considered Legislation that would have provided illegitimate children with a cause of action to establish the paternity of their natural fathers and would have imposed upon those fathers the same duty of support owed to legitimate children. The legislature did not enact that legislation, however, choosing instead to establish a procedure by which natural fathers voluntarily could legitimate their illegitimate children and thereby take upon themselves the obligation of supporting those children. Texas Dept. of Human Resources v. Hernandez, 595 S.W.2d 189, 191 (Tex.Civ.App.1980). No provision was made for illegitimate children to seek support from fathers who fail to support them. 5 Not surprisingly, this legislation was found by Texas courts to be an inadequate response to Gomez. A panel of the Texas Court of Civil Appeals held that, because of Gomez, "[w]hen the Legislature later provided judicial relief against the father on behalf of a legitimate child for support, it necessarily provided the same relief on behalf of an illegitimate child." In re R____ V____ M____, 530 S.W.2d 921, 922-923 (Tex.Civ.App.1975). Only after this judicial recognition of a right to support did the Texas Legislature establish procedures for a paternity and support action on behalf of illegitimate children. Texas Dept. of Human Resources v. Hernandez, supra, at 191. 6 The rights of illegitimate children to obtain support from their biological fathers are now governed by Chapter 13 of Title 2 of the Code § 13.01 et seq. The Code recognizes that establishment of paternity is the necessary first step in all suits by illegitimate children for support from their natural fathers. See In re Miller, 605 S.W.2d 332, 334 (Tex.Civ.App.1980); Texas Dept. of Human Resources v. Delley, 581 S.W.2d 519, 522 (Tex.Civ.App.1979). Accordingly, Chapter 13 establishes procedures to be followed in judicial determinations of paternity and works in conjunction with other provisions of the Code to establish the duty of fathers to support their illegitimate children. See Code §§ 12.04, 14.05. Once paternity has been determined, Chapter 13 authorizes the court to order the defendant father "to make periodic payments or a lump-sum payment, or both, for the support of the child until he is 18 years of age," Code § 14.05(a). See Code § 13.42(b). 7 Although it granted illegitimate children the opportunity to obtain support by establishing paternity, Texas was less than generous. It significantly truncated that opportunity by the statutory provision at issue in this case, § 13.01: 8 "A suit to establish the parent-child relationship between a child who is not the legitimate child of a man and the child's natural father by proof of paternity must be brought before the child is one year old, or the suit is barred." 9 Texas views this provision as part of the substantive right accorded illegitimate children, not simply as a procedural limitation on that right. Texas Dept. of Human Resources v. Hernandez, supra, at 192-193. Moreover, Texas courts have applied § 13.01 literally to mean that failure to bring suit on behalf of illegitimate children within the first year of their life "results in [their] being forever barred from the right to sue their natural father for child support, a limitation their legitimate counterparts do not share." In re Miller, supra, at 334. Thus, in response to the constitutional requirements of Gomez, Texas has created a one-year window in its previously "impenetrable barrier," through which an illegitimate child may establish paternity and obtain paternal support.1 II 10 Appellant in this case is the mother of a child born out of wedlock in early 1977. In October 1978, she and the Texas Department of Human Resources, to which appellant had assigned the child's support rights,2 brought suit on behalf of the child to establish that appellee was his natural father. Appellee answered by asserting that the action was barred by § 13.01 because the child was one year and seven months old when the suit was filed. The trial court agreed with appellee and dismissed the suit. 11 The dismissal was affirmed on appeal by the Texas Court of Civil Appeals, and discretionary review was denied by the Texas Supreme Court upon a finding of no reversible error.3 The Court of Civil Appeals, relying upon its decision in Texas Dept. of Human Resources v. Hernandez, 595 S.W.2d 189 (1930), held that the one-year limitation was not tolled during minority and did not violate the Equal Protection Clause of the Fourteenth Amendment. The Hernandez decision in turn relied upon the constitutional analysis in Texas Dept. of Human Resources v. Chapman, 570 S.W.2d 46 (Tex.Civ.App.1978), where another division of the Court of Civil Appeals had found that "the legitimate state interest in precluding the litigation of stale or fraudulent claims" was rationally related to the one-year bar and therefore did not deny illegitimate children equal protection of the law. Id., at 49. 12 Appellant argues that the § 13.01 bar imposes a burden on illegitimate children that is not shared by legitimate children, and that the burden is not justified by the State's interest in avoiding the prosecution of stale or fraudulent claims. In addition, appellant argues that § 13.01 deprives illegitimate children of their right to support without due process of law. Because we agree with appellant's first argument, we need not consider her second. III 13 Our decision in Gomez held that "a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally." 409 U.S., at 538, 93 S.Ct., at 875. Specifically, we held that a State which grants an opportunity for legitimate children to obtain paternal support must also grant that opportunity to illegitimate children. If Gomez and the equal protection principles which underlie it are to have any meaning, it is clear that the support opportunity provided by the State to illegitimate children must be more than illusory. The period for asserting the right to support must be sufficiently long to permit those who normally have an interest in such children to bring an action on their behalf despite the difficult personal, family, and financial circumstances that often surround the birth of a child outside of wedlock. It would hardly satisfy the demands of equal protection and the holding of Gomez to remove an "impenetrable barrier" to support, only to replace it with an opportunity so truncated that few could utilize it effectively. 14 The fact that Texas must provide illegitimate children with a bona fide opportunity to obtain paternal support does not mean, however, that it must adopt procedures for illegitimate children that are coterminous with those accorded legitimate children. Paternal support suits on behalf of illegitimate children contain an element that such suits for legitimate children do not contain: proof of paternity. Such proof is often sketchy and strongly contested, frequently turning upon conflicting testimony from only two witnesses. Indeed, the problems of proving paternity have been recognized repeatedly by this Court. Parham v. Hughes, 441 U.S. 347, 357, 361, 99 S.Ct. 1742, 1748, 1750, 60 L.Ed.2d 269 (1979); Lalli v. Lalli, 439 U.S. 259, 269, 99 S.Ct. 518, 525, 58 L.Ed.2d 503 (1978); Trimble v. Gordon, 430 U.S. 762, 772, 97 S.Ct. 1459, 1466, 52 L.Ed.2d 31 (1977); Gomez v. Perez, 409 U.S., at 538, 93 S.Ct., at 875.4 15 Therefore, in support suits by illegitimate children more than in support suits by legitimate children, the State has an interest in preventing the prosecution of stale or fraudulent claims, and may impose greater restrictions on the former than it imposes on the latter. Such restrictions will survive equal protection scrutiny to the extent they are substantially related to a legitimate state interest. See Lalli v. Lalli, supra, 439 U.S., at 265, 99 S.Ct., at 523; Trimble v. Gordon, supra, 430 U.S., at 767, 97 S.Ct., at 1463; Mathews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 2764, 49 L.Ed.2d 651 (1976).5 The State's interest in avoiding the litigation of stale or fraudulent claims will justify those periods of limitation that are sufficiently long to present a real threat of loss or diminution of evidence, or an increased vulnerability to fraudulent claims. 16 The equal protection analysis in this case, therefore, focuses on two related requirements. First, the period for obtaining support granted by Texas to illegitimate children must be sufficiently long in duration to present a reasonable opportunity for those with an interest in such children to assert claims on their behalf. Second, any time limitation placed on that opportunity must be substantially related to the State's interest in avoiding the litigation of stale or fraudulent claims. Applying these two requirements to the one-year right granted by Texas, we find a denial of equal protection. 17 By granting illegitimate children only one year in which to establish paternity, Texas has failed to provide them with an adequate opportunity to obtain support. Paternity suits in Texas "may be brought by any person with an interest in the child," Code § 11.03, but during the child's early years will often be brought by the mother. It requires little experience to appreciate the obstacles to such suits that confront unwed mothers during the child's first year. Financial difficulties caused by childbirth expenses or a birth-related loss of income, continuing affection for the child's father, a desire to avoid disapproval of family and community, or the emotional strain and confusion that often attend the birth of an illegitimate child all encumber a mother's filing of a paternity suit within 12 months of birth. Even if the mother seeks public financial assistance and assigns the child's support claim to the State, it is not improbable that 12 months would elapse without the filing of a claim. Several months could pass before a mother finds the need to seek such assistance, takes steps to obtain it, and is willing to join the State in litigation against the natural father.6 A sense of the inadequacy of this one-year period is accentuated by a realization that failure to file within 12 months "results in illegitimates being forever barred from the right to sue their natural father for child support," In re Miller, 605 S.W.2d, at 334, while legitimate children may seek such support at any time until the age of 18.7 18 Moreover, this unrealistically short time limitation is not substantially related to the State's interest in avoiding the prosecution of stale or fraudulent claims. In Gomez we recognized that the problems of proof in paternity suits "are not to be lightly brushed aside," but held that such problems do not justify a complete denial of support rights to illegitimate children. 409 U.S., at 538, 93 S.Ct., at 875. Neither do they justify a period of limitation which so restricts those rights as effectively to extinguish them. We can conceive of no evidence essential to paternity suits that invariably will be lost in only one year, nor is it evident that the passage of 12 months will appreciably increase the likelihood of fraudulent claims.8 19 Accordingly, we conclude that the one-year period for establishing paternity denies illegitimate children in Texas the equal protection of law.9 The judgment of the Texas Court of Civil Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. 20 Reversed. 21 Justice O'CONNOR, with whom THE CHIEF JUSTICE, Justice BRENNAN, and Justice BLACKMUN join, and with whom Justice POWELL joins as to Part I, concurring. 22 Today, this Court holds that a Texas statute prescribing a one-year statute of limitation for paternity suits violates the Equal Protection Clause of the Fourteenth Amendment. Although I agree with the Court's analysis and result, I write separately because I fear that the opinion may be misinterpreted as approving the 4-year statute of limitation now used in Texas. See Tex.Fam.Code Ann. § 13.01 (Supp.1982). 23 * As the Court notes, the response of the Texas Legislature to our opinion in Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), was "less than generous." Ante, at 94. The one-year statute of limitation for paternity suits, enacted following our decision in Gomez, severely restricted the opportunity for illegitimate children to obtain financial support from their natural fathers, an opportunity not denied legitimate children. Although the need for proof of paternity distinguishes legitimate from illegitimate children in their claims for child support, the State's asserted justification is neither sufficiently weighty nor substantially related to the limitation to uphold the statute under the Fourteenth Amendment. 24 The appellee has set forth a number of "state interests" to justify the one-year statute of limitation, but the Court accepts only one of these as permissible—the interest in preventing the prosecution of stale or fraudulent claims. The Court holds today that this interest will justify only those statutes of limitation that "are sufficiently long to present a real threat of loss or diminution of evidence, or an increased vulnerability to fraudulent claims." Ante, at 99. The Court elaborates: 25 "It requires little experience to appreciate the obstacles to such suits that confront unwed mothers during the child's first year. Financial difficulties caused by child-birth expenses or a birth-related loss of income, continuing affection for the child's father, a desire to avoid disapproval of family and community, or the emotional strain and confusion that often attend the birth of an illegitimate child all encumber a mother's filing of a paternity suit within 12 months of birth." Ante, at 100. 26 Certainly, these circumstances demonstrate that the one-year period of limitation once provided by § 13.01 is not sufficiently long to permit either the child or the mother to assert a claim for child support; moreover, there is nothing to indicate that the period is substantially related to the asserted interest in preventing the prosecution of stale or fraudulent claims. However, it is not only birth-related circumstances that compel the conclusion that the statutory distinction in this case between legitimate and illegitimate children is unconstitutional. To begin with, the strength of the asserted state interest is undercut by the countervailing state interest in ensuring that genuine claims for child support are satisfied. The State's interest stems not only from a desire to see that "justice is done," but also from a desire to reduce the number of individuals forced to enter the welfare rolls.1 By making it difficult for unwed mothers to obtain child support payments from the natural fathers of their illegitimate children, the one-year statute of limitation could only increase the burden on the state welfare system. Thus, while the State surely has an interest in preventing the prosecution of stale and fraudulent claims, at the same time it has a strong interest, peculiar to the State itself, in ensuring that genuine claims for child support are not denied.2 27 It is also significant to the result today that a paternity suit is one of the few Texas causes of action not tolled during the minority of the plaintiff.3 Of all the difficult proof problems that may arise in civil actions generally, paternity, an issue unique to illegitimate children, is singled out for special treatment. When this observation is coupled with the Texas Legislature's efforts to deny illegitimate children any significant opportunity to prove paternity and thus obtain child support, it is fair to question whether the burden placed on illegitimates is designed to advance permissible state interests. 28 Finally, the practical obstacles to filing suit within one year of birth could as easily exist several years after the birth of the illegitimate child. For example, if, because of the continuing relationship between the natural father and the mother, the father has provided the child with financial support for several years, the mother understandably would be unlikely or even unwilling4 to jeopardize her relationship with the child's father by filing a paternity suit in order to protect her child's right to financial support at some indeterminate future date. Alternatively, the child may have lived with the father alone or his relatives for a number of years, a situation that leaves the child obviously unable to sue his father to establish paternity. The risk that the child will find himself without financial support from his natural father seems as likely throughout his minority as during the first year of his life. II 29 A review of the factors used in deciding that the one-year statute of limitation cannot withstand an equal protection challenge indicates that longer periods of limitation for paternity suits also may be unconstitutional. In short, there is nothing special about the first year following birth that compels the decision in this case. Because I do not read the Court's decision as prejudging the constitutionality of longer periods of limitation, I join it. 30 Justice POWELL, concurring in the judgment. 31 I join Part I of Justice O'CONNOR's concurring opinion, but do not join the Court's opinion. I am concerned, for the reasons persuasively stated by Justice O'CONNOR, that the Court's opinion may be read as prejudging the constitutionality of longer periods of limitation. As she observes, it is significant "that a paternity suit is one of the few Texas causes of action not tolled during the minority of the plaintiff." Ante, at 104. 1 Since the Court of Civil Appeals' decision in this case, the Texas Legislature has amended § 13.01 to increase to four years the period for asserting paternity claims. 1981 Tex.Gen.Laws, ch. 674, § 2, Tex.Fam.Code Ann. § 13.01 (Supp.1982). Appellee argues that this amendment renders appellant's claim moot, or at least requires a remand so that the Texas courts can determine whether the amendment is retroactive. We disagree. The case is not moot because § 13.01, as applied by the courts below, continues to stand as a bar to appellant's assertion of a paternity claim against appellee. At the filing of appellant's claim the child was more than one year old, and on September 1, 1981, the effective date of the amendment, the child was more than four years old. It seems probable that the amendment would not be applied retroactively by Texas courts. "It is well established law in Texas that after a cause of action has become barred by a statute of limitation, the defendant has a vested right to rely on the statute as a defense, and the state legislature cannot divest the defendant of his right by thereafter lifting the bar of limitation which had accrued in favor of the defendant. Any statute that had such an effect would be considered a retroactive law violative of Article 1, sec. 16 of the Constitution of the State of Texas." Penry v. Wm. Barr, Inc., 415 F.Supp. 126, 128 (ED Tex.1976) (citations omitted). See also Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249 (Tex.1887); Brantley v. Phoenix Insurance Co., 536 S.W.2d 72, 74 (Tex.Civ.App.1976); Southern Pacific Transportation Co. v. State, 380 S.W.2d 123, 127 (Tex.Civ.App.1964). 2 Prior to filing this support suit against appellee, appellant sought financial assistance under the Aid to Families with Dependent Children program. As conditions to eligibility for such assistance, appellant was required "to assign the State any rights to support" held by the child, 42 U.S.C. § 602(a)(26)(A), and "to cooperate with the State . . . in establishing the paternity of [the] child born out of wedlock with respect to whom aid [was] claimed." 42 U.S.C. § 602(a)(26)(B)(i). 3 The decisions of the Texas Court of Civil Appeals and the Texas Supreme Court are not officially reported. 4 Appellant contends that time limitations on the right of illegitimate children to prove paternity would never be justified by the State's desire to avoid litigation of stale or fraudulent claims because "[t]he interests of the state, and those of the alleged father, to prevent incorrect claims of paternity are . . . protected by the recent advance in blood and genetic testing." Brief for Appellant 29. We previously have recognized that blood tests are highly probative in proving paternity, Little v. Streater, 452 U.S. 1, 6-8, 101 S.Ct. 2202, 2205-06, 68 L.Ed.2d 627 (1981), but disagree with appellant's contention that their existence negates the State's interest in avoiding the prosecution of stale or fraudulent claims. Traditional blood tests do not prove paternity. They prove nonpaternity, excluding from the class of possible fathers a high percentage of the general male population. H. Krause, Illegitimacy: Law and Social Policy 123-136 (1971). Thus the fact that a certain male is not excluded by these tests does not prove that he is the child's natural father, only that he is a member of the limited class of possible fathers. More recent developments in the field of blood testing have sought not only to "prove nonpaternity" but also to predict paternity with a high degree of probability. See Terasaki, Resolution by HLA Testing of 1000 Paternity Cases Not Excluded by ABO Testing, 16 J.Fam.L. 543 (1978). The proper evidentiary weight to be given to these techniques is still a matter of academic dispute. See, e.g., Jaffee, Comment on the Judicial Use of HLA Paternity Test Results and Other Statistical Evidence: Response to Terasaki, 17 J.Fam.L. 457 (1979). Whatever evidentiary rule the courts of a particular State choose to follow, if the blood test evidence does not exclude a certain male, he must thereafter turn to more conventional forms of proof—evidence of lack of access to the mother, his own testimony, the testimony of others—to prove that, although not excluded by the blood test, he is not in fact the child's father. As to this latter form of proof, the State clearly has an interest in litigating claims while the evidence is relatively fresh. This interest is particularly real under Texas procedures. Texas law requires that putative fathers submit to blood tests. Code § 13.02. Refusal to submit to the tests may result in a citation for contempt, Code § 13.02(b), and may be introduced to the jury as evidence that the putative father has not been biologically excluded from the class of possible fathers. Code § 13.06(d). The results of the blood tests are introduced at a pretrial conference held for the purpose of dismissing the complaint if the father has been excluded by the tests from the class of possible fathers. Code §§ 13.04, 13.05(a). Thus, the only paternity cases which actually go to trial in Texas are those in which the putative father has refused to submit to blood tests or has not been excluded by their results, cases in which conventional types of evidence are of paramount importance. 5 Lalli v. Lalli and Trimble v. Gordon involved the right of illegitimate children to inherit from their natural fathers, while Mathews v. Lucas involved the right of illegitimate children to receive social security benefits. There is no reason to think that the factual differences between those cases and the present case call for a variation of the general principle which those cases have laid down. In Lucas the Court expressly relied on Gomez v. Perez in reaching its result. 427 U.S., at 507, 96 S.Ct., at 2763. And in Lalli the requirement imposed by New York law for an illegitimate child to inherit from its natural father was that the paternity of the father be declared in a judicial proceeding sometime before his death. 439 U.S., at 263, 99 S.Ct., at 522. Thus, even those of our cases which have dealt with entitlement to government benefits, or with the intestate distribution of a natural father's property, have frequently involved support orders or adjudications of paternity as a means for establishing the entitlement or the right there sought. 6 See n. 2, supra. 7 The Texas Family Code imposes no period of limitation on the right of a legitimate child to obtain support from its father, a right which lasts until the child is 18 years old. § 14.05(a). Although Texas law includes a 4-year limitations period applicable to "[e]very action . . . for which no limitation is otherwise prescribed," Tex.Rev.Civ.Stat.Ann., Art. 5529 (Vernon 1982), the running of that period is tolled during minority. Art. 5535. See also In re Miller, 605 S.W.2d, at 334. 8 Appellee contends that the one-year limitation of § 13.01 also is justified by the State's "interest in the continuation of the institutions of family and marriage" and the avoidance of any state actions that would "discourage either institution or . . . encourage persons to have children out of wedlock." Brief for Appellee 21. Important as such a state interest might be, we have repeatedly held that "imposing disabilities on the illegitimate child is contrary to the basic concept of our system that burdens should bear some relationship to individual responsibility or wrongdoing." Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 1407, 31 L.Ed.2d 768 (1972). See also Lalli v. Lalli, 439 U.S., at 265, 99 S.Ct., at 523; Trimble v. Gordon, 430 U.S., at 769-770, 97 S.Ct., at 1464-65; Mathews v. Lucas, 427 U.S., at 505, 96 S.Ct., at 2762. 9 The restrictions imposed by States to control problems of proof, like the restriction imposed by Texas in this case, often take the form of statutes of limitation. "Statutes of limitation find their justification in necessity and convenience rather than in logic. . . . They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost." Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628 (1945). Because such statutes "are by definition arbitrary," ibid., they are best left to legislative determination and control. Normally, therefore, States are free to set periods of limitation without fear of violating some provision of the Constitution. In this case, however, the limitation period enacted by the Texas Legislature has the unusual effect of emasculating a right which the Equal Protection Clause requires the State to provide to illegitimate children. 1 In holding that the general 4-year statute of limitation, which governed paternity suits for children born before enactment of § 13.01, would be tolled during the plaintiff's minority, the Texas Court of Civil Appeals wrote: "We agree with the Washington Supreme Court which held that '[t]he state has a compelling interest in assuring that the primary obligation for support of illegitimate children falls on both natural parents rather than on the taxpayers of this state.' State v. Wood, 89 Wash.2d 97, 569 P.2d 1148, 1151 (1977)." Texas Dept. of Human Resources v. Delley, 581 S.W.2d 519, 522 (Tex.Civ.App.1979). 2 The State's concern about stale and fraudulent claims is substantially alleviated by recent scientific developments in blood testing dramatically reducing the possibility that a defendant will be falsely accused of being the illegitimate child's father. In Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981), this Court discussed a report by the American Bar Association and the American Medical Association indicating that a series of blood tests could provide over a 90% probability of negating a finding of paternity for erroneously accused men. See Miale, Jennings, Rettberg, Sell, & Krause, Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Family L.Q. 247, 258 (1976). The Court concluded that the "effectiveness of the [tests] attests the probative value of blood test evidence in paternity cases." 452 U.S., at 8, 101 S.Ct., at 2206. See also Terasaki, Resolution by HLA Testing of 1000 Paternity Cases Not Excluded by ABO Testing, 16 J. Family L. 543 (1978). 3 Most statutes of limitation in Texas are governed by Tex.Rev.Civ.Stat.Ann., Art. 5535 (Vernon 1982), which provides: "If a person entitled to bring any action mentioned in this subdivision of this title be at the time the cause of action accrues either a minor, a married person under twenty-one years of age, a person imprisoned or a person of unsound mind, the time of such disability shall not be deemed a portion of the time limited for the commencement of the action and such person shall have the same time after the removal of his disability that is allowed to others by the provisions of this title." See Simpson v. City of Abilene, 388 S.W.2d 760 (Tex.Civ.App.1965) (holding the 2-year statute of limitation for bringing a negligence action tolled during the plaintiff's minority). In Texas Dept. of Human Resources v. Hernandez, 595 S.W.2d 189, 192 (Tex.Civ.App.1980), the Texas Court of Civil Appeals expressly held that Tex.Fam.Code Ann. § 13.01 (Supp.1982) is not tolled on account of the plaintiff's minority on the ground that tolling the statute of limitation "would but constitute a disingenuous way of holding Section 13.01 unconstitutional." Moreover, according to the court, by incorporating the time limitation into the statute creating the substantive right, the "limitation qualifies the right so that it becomes a part of the substantive law rather than the procedural law." 595 S.W.2d, at 193. Thus, as a matter of state law, the tolling provision in Tex.Rev.Civ.Stat.Ann., Art. 5535 (Vernon 1982) does not apply to § 13.01. 4 The unwillingness of the mother to file a paternity action on behalf of her child, which could stem from her relationship with the natural father or, as the Court points out, from the emotional strain of having an illegitimate child, or even from the desire to avoid community and family disapproval, may continue years after the child is born. The problem may be exacerbated if, as often happens, the mother herself is a minor. The possibility of this unwillingness to file suit underscores that the mother's and child's interests are not congruent, and illustrates the unreasonableness of the Texas statute of limitation.

12

456 U.S. 201 102 S.Ct. 1650 72 L.Ed.2d 12 UNITED STATES, Petitioner,v.ERIKA, INC. No. 80-1594. Argued March 1, 1982. Decided April 20, 1982. Syllabus Part B of the Medicare program, the federally subsidized, voluntary health insurance system for persons 65 or older or who are disabled, supplements Part A, which covers institutional health costs such as hospital expenses, by insuring against a portion of medical expenses excluded from Part A. Under the statute, private insurance carriers are assigned the task of paying Part B claims. If the carrier determines that a claim meets Part B coverage criteria, the claim is paid out of federal funds. Disputed determinations are subject to review in a hearing by the carrier if the disputed amount is $100 or more. The statute also provides for a review by the Secretary of Health and Human Services of determinations of whether an individual is entitled to benefits under Part A or Part B, and of the determination of the amount of benefits under Part A. Persons dissatisfied with the Secretary's decision are granted the right to additional administrative review, together with the option of judicial review when the dispute relates to their eligibility to participate in either Part A or Part B or concerns the amount of Part A benefits. When respondent distributor of kidney dialysis supplies made sales covered by Part B, the purchasers assigned their Part B claims to respondent. Respondent in turn billed the private insurance carrier, who was required by contract to reimburse 80% of what it determined were "reasonable charges" for the supplies. The carrier interpreted the relevant statute and regulations to define "reasonable charges" to be the catalog price of the supplies as of July 1 of the preceding calendar year. When the carrier refused respondent's request to make adjustments in this method of reimbursement in order to reflect interim price increases, respondent sought review before one of the carrier's hearing officers, who upheld the carrier's decision. Respondent then brought an action against the United States in the Court of Claims, seeking reimbursement on the basis of its current charges. After ruling that the suit was within its jurisdiction under the Tucker Act, the Court of Claims held that the carrier's calculation of respondent's allowable charges erred in several respects, and remanded for redetermination of the charges. Held : The Court of Claims has no jurisdiction to review determinations by private insurance carriers of the amount of benefits payable under Part B of the Medicare program. Pp. 206-211. (a) In the context of the statute's precisely drawn provisions, the omission to authorize judicial review of determinations of the amount of Part B awards provides persuasive evidence that Congress deliberately intended to foreclose further review of such claims. Pp. 206-208. (b) The legislative history confirms that Congress intended to limit review of the Part B awards, which are generally smaller than Part A awards. Pp. 208-211 634 F.2d 580, 225 Ct.Cl. 252, and 647 F.2d 129, 225 Ct.Cl. 273, reversed. Edwin S. Kneedler, Washington, D. C., for petitioner. Stephen H. Oleskey, Boston, Mass., for respondent. Justice POWELL delivered the opinion of the Court. 1 The question is whether the Court of Claims has jurisdiction to review determinations by private insurance carriers of the amount of benefits payable under Part B of the Medicare statute. 2 * Part B of the Medicare program, 79 Stat. 301, as amended, 42 U.S.C. § 1395j et seq. (1976 ed. and Supp.IV), is a federally subsidized, voluntary health insurance system for persons who are 65 or older or who are disabled. The companion Part A Medicare program covers institutional health costs such as hospital expenses. Part B supplements Part A's coverage by insuring against a portion of some medical expenses, such as certain physician services and X-rays, that are excluded from the Part A program. Eligible individuals pay monthly premiums if they choose to enroll in Part B. These premiums, together with contributions from the Federal Government, are deposited in the Federal Supplementary Medical Insurance Trust Fund that finances the Part B program. See §§ 1395j, 1395r, 1395s, 1395t, and 1395w (1976 ed. and Supp.IV). 3 The Secretary of Health and Human Services administers the Medicare program. "In order to provide for the administration of the benefits . . . with maximum efficiency and convenience for individuals entitled to benefits," the Secretary is authorized to assign the task of paying Part B claims from the Trust Fund to private insurance carriers experienced in such matters.1 § 1395u. See H.R.Rep. No. 213, 89th Cong., 1st Sess., 46 (1965); S.Rep. No. 404, 89th Cong., 1st Sess., 53 (1965), U.S.Code Cong. & Admin.News 1965, p. 1943. After Part B enrollees receive medical care, they (or, after their assignment, their medical providers) bill the private insurance carrier. 4 If the carrier determines that a claim meets all Part B coverage criteria such as medical necessity and reasonable cost, the carrier pays the claim out of the federal funds. See 42 U.S.C. § 1395u; Schweiker v. McClure, 456 U.S. 188, 102 S.Ct. 1665, 72 L.Ed.2d 1. If the carrier decides that reimbursement in full is not warranted, the statute and the regulations designate an appeal procedure available to dissatisfied claimants. All may request a "review determination," which is a de novo written review hearing before a carrier employee different from the one who initially decided the claim. Claimants who remain dissatisfied and whose appeal involves more than $100 then may petition for an oral hearing before a hearing officer designated by the carrier. See 42 U.S.C. § 1395u(b)(3)(C); 42 CFR § 405.820 (1980). Unless the carrier or the hearing officer decides to reopen the proceeding, the hearing officer's decision is "final and binding upon all parties to the hearing. . . ." § 405.835. Neither the statute nor the Secretary's regulations make further provision for review of hearing officer decisions. II 5 Respondent, a major distributor of kidney dialysis supplies, sold its products to institutions and individuals. About half of such sales were covered by the Part B program. Persons purchasing dialysis supplies assigned their Medicare Part B claims to respondent. See 42 U.S.C. § 426(e), § 426-1 (1976 ed., Supp.IV) (establishing Part B coverage for renal disease). Respondent in turn billed the Prudential Insurance Company of America, the private insurance carrier for the New Jersey area in which it is based. According to its contract with the Secretary, Prudential was required to reimburse 80% of what it determined to be a "reasonable charg[e]" for these supplies. See § 1395l (a) (1976 ed., Supp.IV). 6 Prudential interpreted the relevant statute and regulations to define the "reasonable charges" for respondent's products to be their catalog price as of July 1 of the preceding calendar year.2 For example, Prudential reimbursed respondent's Part B invoices from July 1, 1975, to June 30, 1976, on the basis of prices contained in respondent's July 1, 1974, catalog. 7 Prudential began reimbursing respondent on this basis in 1974. Early in 1976 the respondent learned about the grounds for Prudential's partial reimbursement of its invoices. At that time it requested Prudential to adjust past and future reimbursements to reflect price increases effective after July 1, 1974. Prudential agreed to adjust prospectively the basis for payment for the drug heparin, the price of which apparently had increased sharply. Cf. U.S. Dept. of HEW, Medicare Part B Carriers Manual § 5010.2 (1980) (permitting adjustments to customary charges in "highly unusual situations where equity clearly indicates that the increases are warranted"). But the carrier refused to make either retroactive adjustments for heparin or any adjustments at all for other products.3 8 Respondent sought review of this refusal before one of Prudential's hearing officers pursuant to 42 U.S.C. § 1395u(b)(3)(C). The hearing officer affirmed Prudential's decision. Respondent then brought the instant action against the United States in the Court of Claims seeking reimbursement on the basis of its current charges, asserting that Prudential's refusal to set "reasonable charges" on the basis of respondent's interim price increases contravened the Fifth Amendment as well as the Social Security Act and applicable regulations. The Court of Claims ruled that respondent's suit was within the jurisdictional grant of the Tucker Act, 28 U.S.C. § 1491, which permits the Court of Claims to hear "any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department." 634 F.2d 580, 584-588, 225 Ct.Cl. 252, 256-262 (1980) (en banc), opinion clarified, 647 F.2d 129, 225 Ct.Cl. 273 (1981).4 On the merits, the court decided that Prudential's calculation of respondent's maximum allowable charge erred in several respects. Id., at 588-590, 225 Ct.Cl., at 262-268. The court remanded the case to Prudential for redetermination of these matters.5 We granted certiorari to determine whether the Court of Claims has jurisdiction over suits of this kind. 451 U.S. 982, 101 S.Ct. 2312, 68 L.Ed.2d 838 (1981). We now reverse. III 9 The United States argues that Congress, by enacting the Medicare statute, 42 U.S.C. § 1395j et seq. (1976 ed. and Supp.IV), specifically precluded review in the Court of Claims of adverse hearing officer determinations of the amount of Part B payments. We agree.6 10 Our lodestar is the language of the statute. Congress has specified in the Medicare statute that disputed carrier Part B determinations are to be subject to review in "a fair hearing by the carrier, in any case where the amount in controversy is $100 or more. . . ." 42 U.S.C. § 1395u(b)(3)(C) (emphasis added).7 See Schweiker v. McClure, 456 U.S. 188, 102 S.Ct. 1665, 72 L.Ed.2d 1. Congress also provided explicitly for review by the Secretary of "determination[s] of whether an individual is entitled to benefits under part A or part B, and [of] the determination of the amount of benefits under part A. . . ." § 1395ff(a) (emphasis added). Individuals dissatisfied with the Secretary's decision on such matters are granted the right to additional administrative review,8 together with a further option of judicial review,9 in two instances only: when the dispute relates to their eligibility to participate in either Part A or Part B, and when the dispute concerns the amount of benefits to which they are entitled under Part A. § 1395ff(b).10 11 Section 1395ff thus distinguishes between two types of administrative decisions: eligibility determinations (that decide whether an individual is 65 or over or "disabled" within the meaning of the Medicare program) and amount determinations (that decide the amount of the Medicare payment to be made on a particular claim). Conspicuously, the statute fails to authorize further review for determinations of the amount of Part B awards. In the context of the statute's precisely drawn provisions, this omission provides persuasive evidence that Congress deliberately intended to foreclose further review of such claims. See, e.g., Lehman v. Nakshian, 453 U.S. 156, 162-163, 101 S.Ct. 2698, 2702-2703, 69 L.Ed.2d 548 (1981); Fedorenko v. United States, 449 U.S. 490, 512-513, 101 S.Ct. 737, 750, 66 L.Ed.2d 686 (1981). IV 12 The legislative history confirms this view and explains its logic. The Committee Reports accompanying the original enactment of the Medicare program stated that the supplemental payments under the Part B program generally were expected to be smaller than those under the primary Part A program. Apparently, it was for this reason that the proposed bill did not provide for judicial review of "a determination concerning the amount of benefits under [P]art B. . . ." S.Rep. No. 404, 89th Cong., 1st Sess., 55 (1965), U.S.Code Cong. & Admin.News 1965, pp. 1943, 1995.11 13 This intent to limit the review of the generally smaller Part B awards was reiterated when Congress amended § 1395ff(b) in 1972.12 When introducing this amendment, Senator Bennett stated that it was intended to clarify the intent of existing law, which "greatly restricted" the appealability of Medicare decisions "in order to avoid overloading the courts with quite minor matters." 118 Cong.Rec. 33992 (1972). The Senator explained that the amendment would assure that judicial review would be available as to questions of "eligibility to any benefits of medicare but not [as] to decisions on a claim for payment for a given service."13 Ibid. 14 The Conference Committee advanced an identical explanation for this amendment: 15 "CLARIFICATION OF MEDICARE APPEAL PROCEDURES 16 "Amendment No. 561: The Senate amendment added a new section to the House bill which would make clear that there is no authorization for an appeal to the Secretary or for judicial review on matters solely involving amounts of benefits under Part B, and that insofar as Part A amounts are concerned, appeal is authorized only if the amount in controversy is $100 or more and judicial review only if the amount in controversy is $1,000 or more. 17 "The House recedes." H.R.Conf.Rep. No. 92-1605, p. 61 (1972), U.S.Code Cong. & Admin.News 1972, pp. 4989, 5394. 18 These expressions of legislative intent unambiguously support our reading of the statutory language. Respondent advances no persuasive evidence of contrary congressional will. In such circumstances, our task is at an end.14 19 The judgment of the Court of Claims is reversed. 20 So ordered. 1 For example, the private insurance carrier involved in this suit is the Prudential Insurance Company of America. 2 Claimants' reimbursable "reasonable charge" cannot exceed the "prevailing charge" calculated for "the locality." 42 U.S.C. § 1395u(b)(3) (1976 ed. and Supp.IV). In an effort to control the extent to which the Medicare program contributes to the inflation of medical costs, the "prevailing charge" formula is based on typical local rates for the preceding year. See 42 CFR § 405.504(a)(2)(i) (1980) (defining "prevailing charge" as the fee that "would cover 75 percent of the customary charges made for similar services in the same locality during the calendar year preceding the start of the 12-month period (beginning July 1 of each year) in which the claim is submitted or the request for payment is made") (emphasis added). Prudential defined respondent's own catalog price as the relevant "prevailing charge" because respondent was virtually the only provider of dialysis supplies within Prudential's locality. 3 Respondent claimed that its July 1, 1974, catalog contained a substantial printing error for one product. This claim has been settled and is no longer at issue. 4 The court added: "The plaintiff also asserts we have jurisdiction under section 10(b) of the Administrative Procedure Act, 5 U.S.C. § 703. In view of our holding that we have jurisdiction under the Tucker Act, we find it unnecessary to consider this additional basis of jurisdiction. But cf. Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)." 634 F.2d, at 585, n. 5, 225 Ct.Cl., at 256, n. 5. Respondent's arguments were directed in large measure against the actions of Prudential. Prudential, however, was not made a party to this litigation. The Secretary's regulations specify that the Administrator of the Health Care Financing Administration "is the real party of interest in any litigation involving the administration of the [Medicare] program." 42 CFR § 421.5(b) (1980). 5 The court found respondent's constitutional claims "insubstantial," citing Califano v. Aznavorian, 439 U.S. 170, 99 S.Ct. 471, 58 L.Ed.2d 435 (1978); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); and Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). 634 F.2d, at 591, 225 Ct.Cl., at 268. One judge wrote separately to express regret regarding the "short shrift" that the majority gave these claims. Id., at 593, 225 Ct.Cl., at 272. He reasoned that "Erika may have, probably has, made its constitutional allegations mostly to aid our jurisdiction, and we should not spurn this aid." Id., at 594, 225 Ct.Cl., at 272 (Nichols, J., concurring). Respondent does not press these constitutional claims before us. 6 As we find the language of the statute dispositive, we do not reach the Government's alternative contentions that 42 U.S.C. § 405(h) controls or that the respondent has failed to show that the United States unequivocally has waived sovereign immunity. 7 Although the statute in terms affords this right of review only to an "individual enrolled under [Part B]," 42 U.S.C. § 1395u(b)(3)(C), the Secretary's regulations make clear this right extends to suppliers of Part B services to whom individual beneficiaries have assigned their claims. 42 CFR § 405.801(a) (1980). 8 See 42 U.S.C. § 405(b); 20 CFR part 404, subpart J (1981). 9 See 42 U.S.C. § 405(g). 10 "§ 1395ff. Determinations of Secretary "(a) Entitlement to and amount of benefits "The determination of whether an individual is entitled to benefits under part A or part B, and the determination of the amount of benefits under part A, shall be made by the Secretary in accordance with regulations prescribed by him. "(b) Appeal by individuals "(1) Any individual dissatisfied with any determination under subsection (a) of this section as to— "(A) whether he meets the conditions of section 426 or section 426a of this title [which set forth eligibility requirements to be satisfied before an individual is permitted to participate in Part A of the Medicare program], or "(B) whether he is eligible to enroll and has enrolled pursuant to the provisions of part B of [the Medicare program] . . ., or, "(C) the amount of the benefits under part A (including a determination where such amount is determined to be zero) shall be entitled to a hearing thereon by the Secretary to the same extent as is provided in section 405(b) of this title and to judicial review of the Secretary's final decision after such hearing as is provided in section 405(g) of this title." 11 With respect to "Appeals" the Senate Committee Report stated: "The committee's bill provides for the Secretary to make determinations, under both the hospital insurance plan [Part A] and the supplementary plan [Part B], as to whether individuals are entitled to [Part A] hospital insurance benefits or [Part B] supplementary medical insurance benefits and for hearings by the Secretary and judicial review where an individual is dissatisfied with the Secretary's determination. Hearings and judicial review are also provided for where an individual is dissatisfied with a determination as to the amount of benefits under the [Part A] hospital insurance plan if the amount in controversy is $1,000 or more. (Under the supplementary plan [Part B], carriers, not the Secretary, would review beneficiary complaints regarding the amount of benefits, and the bill does not provide for judicial review of a determination concerning the amount of benefits under part B where claims will probably be for substantially smaller amounts than under part A.) Hospitals, extended care facilities, and home health agencies would be entitled to hearing and judicial review if they are dissatisfied with the Secretary's determination regarding their eligibility to participate in the program. It is intended that the remedies provided by these review procedures shall be exclusive." S.Rep. No. 404, 89th Cong., 1st Sess., 54-55 (1965), U.S.Code Cong. & Admin.News 1965, pp. 1943, 1995 (emphasis added). See also H.R.Rep. No. 213, 89th Cong., 1st Sess., 47 (1965). Congressional limitation of the amount of procedure available to Part B claimants must be understood in light of the magnitude of the Part B program. In 1980, for instance, 158 million Part B claims were processed. Schweiker v. McClure, 456 U.S., at 190, 102 S.Ct., at 1667. 12 As originally enacted, this section provided: "Any individual dissatisfied with any determination under subsection (a) of this section as to entitlement under part A or part B, or as to amount of benefits under part A where the matter in controversy is $100 or more, shall be entitled to a hearing thereon by the Secretary to the same extent as is provided in section 405(b) of this title, and, in the case of a determination as to entitlement or as to amount of benefits where the amount in controversy is $1,000 or more, to judicial review of the Secretary's final decision after such hearing as is provided in section 405(g) of this title." 79 Stat. 330, as set forth in 42 U.S.C. § 1395ff(b) (1970 ed.) (emphasis added). The 1972 amendment replaced the emphasized language, including the first word "entitlement," to create the current wording quoted in n. 10, supra. 13 Senator Bennett's entire opening statement was as follows: ". . . Mr. President, the purpose of the amendment is to make sure existing law, which gives the right of a person to go to court on the question of eligibility to receive welfare, is not interpreted to mean he can take the question of the Federal claim to court. If he did we would never have an end to it. This is to reconfirm the original intention of the law that the courts can determine only eligibility. "The situations in which medicare decisions are appealable to the courts were intended in the original law to be greatly restricted in order to avoid overloading the courts with quite minor matters. The law refers to 'entitlement' as being an issue subject to court review and the word was intended to mean eligibility to any benefits of medicare but not to decisions on a claim for payment for a given service. "If judicial review is made available where any claim is denied, as some court decisions have held, the resources of the Federal court system would be unduly taxed and little real value would be derived by the enrollees. The proposed amendment would merely clarify the original intent of the law and prevent the overloading of the courts with trivial matters because the intent is considered unclear." 118 Cong.Rec. 33992 (1972). The Senate agreed to the amendment without further discussion. Ibid. 14 In addition to its substantive money claim assertedly arising under the Medicare statute, respondent argues that it derives such a substantive claim from an implied-in-fact contract with the United States, or as a third-party beneficiary to Prudential's contract with the United States. These arguments fail because any such contracts with the United States necessarily would include the statutory preclusion of review of hearing officers' determinations regarding the amount of Part B benefits. In response to questioning at oral argument, respondent's counsel answered that it was asserting a constitutional right to judicial review of Prudential's Part B determination. Tr. of Oral Arg. 39. Respondent, however, neither argued this ground in the Court of Claims, included it among the questions presented to this Court in its brief in opposition or in its brief on the merits, nor devoted any substantial briefing to it. We consequently do not address the issue. See this Court's Rules 34.2 and 22.1; cf. Neely v. Martin K. Eby Construction Co., Inc., 386 U.S. 317, 330, 87 S.Ct. 1072, 1080, 18 L.Ed.2d 75 (1967).

89

456 U.S. 188 102 S.Ct. 1665 72 L.Ed.2d 1 Richard S. SCHWEIKER, Secretary of Health and Human Services, Appellant,v.William McCLURE et al. No. 81-212. Argued March 1, 1982. Decided April 20, 1982. Syllabus Part B of the Medicare program under the Social Security Act provides federally subsidized insurance against the cost of certain physician services, outpatient physical therapy, X-rays, laboratory tests, and certain other medical and health care. The Secretary of Health and Human Services is authorized to contract with private insurance carriers to administer the payment of Part B claims. If the carrier refuses on the Secretary's behalf to pay a portion of a claim, the claimant is entitled to a "review determination," based on the submission of written evidence and arguments, and, if the amount in dispute is $100 or more, a still-dissatisfied claimant then has a right to an oral hearing, at which an officer chosen by the carrier presides. The statute and regulations make no further provision for review of the hearing officer's decision. After decisions by hearing officers were rendered against them, appellee claimants sued in Federal District Court to challenge the constitutional adequacy of the hearings afforded to them. The court held that the hearing procedures violated appellees' rights to due process insofar as the final, unappealable decision regarding their claims was made by carrier appointees, that due process required additional safeguards to reduce the risk of erroneous deprivation of Part B benefits, and that appellees were entitled to a de novo hearing conducted by an administrative law judge of the Social Security Administration. Held : The hearing procedures in question do not violate due process requirements. Pp. 195-200. (a) While due process demands impartiality on the part of those who function in a quasi-judicial capacity, such as the hearing officers involved in this case, there is a presumption that these officers are unbiased. This presumption can be rebutted by a showing of conflict of interest or some other specific reason for disqualification. But the factual findings here disclose no disqualifying interest. The officers' connection with the private insurance carriers would be relevant only if the carriers themselves are biased or interested, and there is no basis in the record for such a conclusion. The carriers pay Part B claims from federal, not their own, funds, the hearing officers' salaries are paid by the Federal Government, and the carriers operate under contracts requiring compliance with standards prescribed by the statute and the Secretary. In the absence of proof of financial interest on the carriers' part, there is no basis for assuming a derivative bias among their hearing officers. Pp. 195-197. (b) Nor does the record support the contention that accuracy of Part B decisionmaking may suffer because the carriers appoint unqualified hearing officers and that thus additional procedures would reduce the risk of erroneous decisions. Pp. 1671-1672. 503 F.Supp. 409, reversed and remanded. Kenneth S. Geller, Washington, D. C., for appellant. Harvey Sohnen, Oakland, Cal., for appellees. Justice POWELL, delivered the opinion of the Court. 1 The question is whether Congress, consistently with the requirements of due process, may provide that hearings on disputed claims for certain Medicare payments be held by private insurance carriers, without a further right of appeal. 2 * Title XVIII of the Social Security Act, 79 Stat. 291, as amended, 42 U.S.C. § 1395 et seq. (1976 ed. and Supp.IV), commonly known as the Medicare program, is administered by the Secretary of Health and Human Services. It consists of two parts. Part A, which is not at issue in this case, provides insurance against the cost of institutional health services, such as hospital and nursing home fees. §§ 1395c-1395i-2 (1976 ed. and Supp.IV). Part B is entitled "Supplementary Medical Insurance Benefits for the Aged and Disabled." It covers a portion (typically 80%) of the cost of certain physician services, outpatient physical therapy, X-rays, laboratory tests, and other medical and health care. See §§ 1395k, 1395l, and 1395x(s) (1976 ed. and Supp.IV). Only persons 65 or older or disabled may enroll, and eligibility does not depend on financial need. Part B is financed by the Federal Supplementary Medical Insurance Trust Fund. See § 1395t (1976 ed. and Supp.IV). This Trust Fund in turn is funded by appropriations from the Treasury, together with monthly premiums paid by the individuals who choose voluntarily to enroll in the Part B program. See §§ 1395j, 1395r, and 1395w (1976 ed. and Supp.IV). Part B consequently resembles a private medical insurance program that is subsidized in major part by the Federal Government. 3 Part B is a social program of substantial dimensions. More than 27 million individuals presently participate, and the Secretary pays out more than $10 billion in benefits annually. Brief for Appellant 9. In 1980, 158 million Part B claims were processed. Ibid. In order to make the administration of this sweeping program more efficient, Congress authorized the Secretary to contract with private insurance carriers to administer on his behalf the payment of qualifying Part B claims. See 42 U.S.C. § 1395u (1976 ed. and Supp.IV). (In this case, for instance, the private carriers that performed these tasks in California for the Secretary were Blue Shield of California and the Occidental Insurance Co.) The congressional design was to take advantage of such insurance carriers' "great experience in reimbursing physicians." H.R.Rep.No.213, 89th Cong., 1st Sess., 46 (1965). See also 42 U.S.C. § 1395u(a); S.Rep.No.404, 89th Cong., 1st Sess., 53 (1965). 4 The Secretary pays the participating carriers' costs of claims administration. See 42 U.S.C. § 1395u(c). In return, the carriers act as the Secretary's agents. See 42 CFR § 421.5(b) (1980). They review and pay Part B claims for the Secretary according to a precisely specified process. See 42 CFR part 405, subpart H (1980). Once the carrier has been billed for a particular service, it decides initially whether the services were medically necessary, whether the charges are reasonable, and whether the claim is otherwise covered by Part B. See 42 U.S.C. § 1395y(a) (1976 ed. and Supp.IV); 42 CFR § 405.803(b) (1980). If it determines that the claim meets all these criteria, the carrier pays the claim out of the Government's Trust Fund—not out of its own pocket. See 42 U.S.C. §§ 1395u(a)(1), 1395u(b)(3), and 1395u(c) (1976 ed. and Supp.IV). 5 Should the carrier refuse on behalf of the Secretary to pay a portion of the claim, the claimant has one or more opportunities to appeal. First, all claimants are entitled to a "review determination," in which they may submit written evidence and arguments of fact and law. A carrier employee, other than the initial decisionmaker, will review the written record de novo and affirm or adjust the original determination. 42 CFR §§ 405.807-405.812 (1980); McClure v. Harris, 503 F.Supp. 409, 411 (ND Cal.1980). If the amount in dispute is $100 or more, a still-dissatisfied claimant then has a right to an oral hearing. See 42 U.S.C. § 1395u(b)(3)(C); 42 CFR §§ 405.820-405.860 (1980). An officer chosen by the carrier presides over this hearing. § 405.823. The hearing officers "do not participate personally, prior to the hearing [stage], in any case [that] they adjudicate." 503 F.Supp., at 414. See 42 CFR § 405.824 (1980). 6 Hearing officers receive evidence and hear arguments pertinent to the matters at issue. § 405.830. As soon as practicable thereafter, they must render written decisions based on the record. § 405.834. Neither the statute nor the regulations make provision for further review of the hearing officer's decision.1 See United States v. Erika, Inc., 456 U.S. 201, 102 S.Ct. 1650, 72 L.Ed.2d 12. II 7 This case arose as a result of decisions by hearing officers against three claimants.2 The claimants, here appellees, sued to challenge the constitutional adequacy of the hearings afforded them. The District Court for the Northern District of California certified appellees as representatives of a nationwide class of individuals whose claims had been denied by carrier-appointed hearing officers. 503 F.Supp., at 412-414. On cross-motions for summary judgment, the court concluded that the Part B hearing procedures violated appellees' right to due process "insofar as the final, unappealable decision regarding claims disputes is made by carrier appointees. . . ." Id., at 418. 8 The court reached its conclusion of unconstitutionality by alternative lines of argument. The first rested upon the principle that tribunals must be impartial. The court thought that the impartiality of the carrier's hearing officers was compromised by their "prior involvement and pecuniary interest." Id., at 414. "Pecuniary interest" was shown, the District Court said, by the fact that "their incomes as hearing officers are entirely dependent upon the carrier's decisions regarding whether, and how often, to call upon their services."3 Id., at 415. Respecting "prior involvement," the court acknowledged that hearing officers personally had not been previously involved in the cases they decided. But it noted that hearing officers "are appointed by, and serve at the will of, the carrier [that] has not only participated in the prior stages of each case, but has twice denied the claims [that] are the subject of the hearing," and that five out of seven of Blue Shield's past and present hearing officers "are former or current Blue Shield employees."4 Id., at 414. (Emphasis in original.) See also 42 CFR § 405.824 (1980). The District Court thought these links between the carriers and their hearing officers sufficient to create a constitutionally intolerable risk of hearing officer bias against claimants. 9 The District Court's alternative reasoning assessed the costs and benefits of affording claimants a hearing before one of the Secretary's administrative law judges, "either subsequent to or substituting for the hearing conducted by a carrier appointee." 503 F.Supp., at 415. The court noted that Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 478 (1976), makes three factors relevant to such an inquiry: 10 "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." 11 Considering the first Mathews factor, the court listed three considerations tending to show that the private interest at stake was not overwhelming.5 The court then stated, however, that "it cannot be gainsaid" that denial of a Medicare beneficiary's claim to reimbursement may impose "considerable hardship." 503 F.Supp., at 416. 12 As to the second Mathews factor of risk of erroneous deprivation and the probable value of added process, the District Court found the record "inconclusive." 503 F.Supp., at 416. The court cited statistics showing that the two available Part B appeal procedures frequently result in reversal of the carriers' original disposition.6 But it criticized these statistics for failing to distinguish between partial and total reversals. The court stated that hearing officers were required neither to receive training nor to satisfy "threshold criteria such as having a law degree." Ibid. On this basis it held that "it must be assumed that additional safeguards would reduce the risk of erroneous deprivation of Part B benefits." Ibid. 13 On the final Mathews factor involving the Government's interest, the District Court noted that carriers processed 124 million Part B claims in 1978. 503 F.Supp., at 416. The court stated that "[o]nly a fraction of those claimants pursue their currently-available appeal remedies," and that "there is no indication that anything but an even smaller group of claimants will actually pursue [an] additional remedy" of appeal to the Secretary. Ibid. Moreover, the court said, the Secretary already maintained an appeal procedure using administrative law judges for appeals by Part A claimants. Increasing the number of claimants who could use this Part A administrative appeal "would not be a cost-free change from the status quo, but neither should it be a costly one." Ibid. 14 Weighing the three Mathews factors, the court concluded that due process required additional procedural protection over that presently found in the Part B hearing procedure. The court ordered that the appellees were entitled to a de novo hearing of record conducted by an administrative law judge of the Social Security Administration.7 App. to Juris. Statement 36a. We noted probable jurisdiction, 454 U.S. 890, 102 S.Ct. 384, 70 L.Ed.2d 204 (1981), and now reverse. III A. 15 The hearing officers involved in this case serve in a quasi-judicial capacity, similar in many respects to that of administrative law judges. As this Court repeatedly has recognized, due process demands impartiality on the part of those who function in judicial or quasi-judicial capacities. E.g., Marshall v. Jerrico, Inc., 446 U.S. 238, 242-243, and n. 2, 100 S.Ct. 1610, 1613, and n. 2, 64 L.Ed.2d 182 (1980). We must start, however, from the presumption that the hearing officers who decide Part B claims are unbiased. See Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975); United States v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999, 1004, 85 L.Ed. 1429 (1941). This presumption can be rebutted by a showing of conflict of interest or some other specific reason for disqualification.8 See Gibson- v. Berryhill, 411 U.S. 564, 578-579, 93 S.Ct. 1689, 1697-98, 36 L.Ed.2d 488 (1973); Ward v. Village of Monroeville, 409 U.S. 57, 60, 93 S.Ct. 80, 83, 34 L.Ed.2d 267 (1972). See also In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) ("to perform its high function in the best way 'justice must satisfy the appearance of justice' ") (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954)). But the burden of establishing a disqualifying interest rests on the party making the assertion. 16 Fairly interpreted, the factual findings made in this case do not reveal any disqualifying interest under the standard of our cases. The District Court relied almost exclusively on generalized assumptions of possible interest, placing special weight on the various connections of the hearing officers with the private insurance carriers.9 The difficulty with this reasoning is that these connections would be relevant only if the carriers themselves are biased or interested. We find no basis in the record for reaching such a conclusion.10 As previously noted, the carriers pay all Part B claims from federal, and not their own, funds. Similarly, the salaries of the hearing officers are paid by the Federal Government. Cf. Mar- shall v. Jerrico, Inc., supra, at 245, 251, 100 S.Ct., at 1614, 1617. Further, the carriers operate under contracts that require compliance with standards prescribed by the statute and the Secretary. See 42 U.S.C. §§ 1395u(a)(1)(A)-(B), 1395u(b)(3), and 1395u(b)(4) (1976 ed. and Supp.IV); 42 CFR §§ 421.200, 421.202, and 421.205(a) (1980). In the absence of proof of financial interest on the part of the carriers, there is no basis for assuming a derivative bias among their hearing officers.11 B 17 Appellees further argued, and the District Court agreed, that due process requires an additional administrative or judicial review by a Government rather than a carrier-appointed hearing officer. Specifically, the District Court ruled that "[e]xisting Part B procedures might remain intact so long as aggrieved beneficiaries would be entitled to appeal carrier appointees' decisions to Part A administrative law judges."12 503 F.Supp., at 417. In reaching this conclusion, the District Court applied the familiar test prescribed in Mathews v. Eldridge, 424 U.S., at 335, 96 S.Ct., at 903. See supra, at 193-195. We may assume that the District Court was correct in viewing the private interest in Part B payments as "considerable," though "not quite as precious as the right to receive welfare or social security benefits." 503 F.Supp., at 416. We likewise may assume, in considering the third Mathews factor, that the additional cost and inconvenience of providing administrative law judges would not be unduly burdensome.13 18 We focus narrowly on the second Mathews factor that considers the risk of erroneous decision and the probable value, if any, of the additional procedure. The District Court's reasoning on this point consisted only of this sentence: 19 "In light of [appellees'] undisputed showing that carrier-appointed hearing officers receive little or no formal training and are not required to satisfy any threshold criteria such as having a law degree, it must be assumed that additional safeguards would reduce the risk of erroneous deprivation of Part B benefits." 503 F.Supp., at 416 (footnote omitted). 20 Again, the record does not support these conclusions. The Secretary has directed carriers to select as a hearing officer 21 " 'an attorney or other qualified individual with the ability to conduct formal hearings and with a general understanding of medical matters and terminology. The [hearing officer] must have a thorough knowledge of the Medicare program and the statutory authority and regulations upon which it is based, as well as rulings, policy statements, and general instructions pertinent to the Medicare Bureau.' " App. 22, quoting Dept. of HEW, Medicare Part B Carriers Manual, ch. VII, p. 12-21 (1980) (emphasis added). 22 The District Court did not identify any specific deficiencies in the Secretary's selection criteria. By definition, a "qualified" individual already possessing "ability" and "thorough knowledge" would not require further training. The court's further general concern that hearing officers "are not required to satisfy any threshold criteria" overlooks the Secretary's quoted regulation.14 Moreover, the District Court apparently gave no weight to the qualifications of hearing officers about whom there is information in the record. Their qualifications tend to undermine rather than to support the contention that accuracy of Part B decisionmaking may suffer by reason of carrier appointment of unqualified hearing officers.15 23 "[D]ue Process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). We have considered appellees' claims in light of the strong presumption in favor of the validity of congressional action and consistently with this Court's recognition of "congressional solicitude for fair procedure. . . ." Califano v. Yamasaki, 442 U.S. 682, 693, 99 S.Ct. 2545, 2553, 61 L.Ed.2d 176 (1979). Appellees simply have not shown that the procedures prescribed by Congress and the Secretary are not fair or that different or additional procedures would reduce the risk of erroneous deprivation of Part B benefits. IV 24 The judgment of the District Court is reversed, and the case is remanded for judgment to be entered for the Secretary. 25 So ordered. 1 Hearing officers may decide to reopen proceedings under certain circumstances. See 42 CFR §§ 405.841-405.850 (1980). 2 Appellee William McClure was denied partial reimbursement for the cost of an air ambulance to a specially equipped hospital. The hearing officer determined that the air ambulance was necessary, but that McClure could have been taken to a hospital closer to home. Appellee Charles Shields was allowed reimbursement for a cholecystectomy but was denied reimbursement for an accompanying appendectomy. The hearing officer reasoned that the appendectomy was merely incidental to the cholecystectomy. Appellee "Ann Doe" was denied reimbursement for the entire cost of a sex-change operation. The hearing officer ruled that the operation was not medically necessary. 3 The District Court recognized that hearing officer salaries are paid from a federal fund and not the carrier's resources. McClure v. Harris, 503 F.Supp. 409, 415 (1980). 4 In this connection, the court referred to the judicial canon requiring a judge to disqualify himself from cases where a " 'lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter.' " 503 F.Supp., at 414-415, quoting Judicial Conference of the United States, Code of Judicial Conduct, Canon 3C(1)(b). The court found that application to hearing officers of standards more lax than those applicable to the judiciary posed "a constitutionally-unacceptable risk of decisions tainted by bias." 503 F.Supp., at 415. Additionally, the court thought it significant that "no meaningful, specific selection criteria govern[ed] the appointment of hearing officers" and that hearing officers were trained largely by the carriers whose decisions they were called upon to review. Ibid. 5 "Eligibility for Part B Medicare benefits is not based on financial need. Part B covers supplementary rather than primary services. Denial of a particular claim in a particular case does not deprive the claimant of reimbursement for other, covered, medical expenses." Id., at 416. 6 "[Appellant] establish[es] that between 1975 and 1978, carriers wholly or partially reversed, upon 'review determination,' their initial determinations in 51-57 percent of the cases considered. Of the adverse determination decisions brought before hearing officers, 42-51 percent of the carriers' decisions were reversed in whole or in part." Ibid. 7 The court added that appellees "are not entitled to further appeal or review of the Administrative Law Judge's decision." App. to Juris. Statement 36a. 8 The Secretary's regulations provide for the disqualification of hearing officers for prejudice and other reasons. See 42 CFR § 405.824 (1980); App. 23-25. Appellees neither sought to disqualify their hearing officers nor presently make claims of actual bias. Tr. of Oral Arg. 34 (argument of counsel for appellees). 9 Before this Court, appellees urge that the Secretary himself is biased in favor of inadequate Part B awards. They attempt to document this assertion—not mentioned by the District Court—by relying on the fact that the Secretary both has helped carriers identify medical providers who allegedly bill for more services than are medically necessary and has warned carriers to control overutilization of medical services. See Brief for Appellees 17-18. This action by the Secretary is irrelevant. It simply shows that he takes seriously his statutory duty to ensure that only qualifying Part B claims are paid. See 42 U.S.C. § 1395y(a) (1976 ed. and Supp.IV); 42 CFR § 405.803(b) (1980). It does not establish that the Secretary has sought to discourage payment of Part B claims that do meet Part B requirements. Such an effort would violate Congress' direction. Absent evidence, it cannot be presumed. 10 Similarly, appellees adduced no evidence to support their assertion that, for reasons of psychology, institutional loyalty, or carrier coercion, hearing officers would be reluctant to differ with carrier determinations. Such assertions require substantiation before they can provide a foundation for invalidating an Act of Congress. 11 The District Court's analogy to judicial canons, see n. 4, supra, is not apt. The fact that a hearing officer is or was a carrier employee does not create a risk of partiality analogous to that possibly arising from the professional relationship between a judge and a former partner or associate. We simply have no reason to doubt that hearing officers will do their best to obey the Secretary's instruction manual: " 'The individual selected to act in the capacity of [hearing officer] must not have been involved in any way with the determination in question and neither have advised nor given consultation on any request for payment which is a basis for the hearing. Since the hearings are of a nonadversary nature, be particularly responsive to the needs of unrepresented parties and protect the claimant's rights, even if the claimant is represented by counsel. The parties' interests must be safeguarded to the full extent of their rights; in like manner, the government's interest must be protected. " 'The [hearing officer] should conduct the hearing with dignity and exercise necessary control and order. . . . The [hearing officer] must make independent and impartial decisions, write clear and concise statements of facts and law, secure facts from individuals without causing unnecessary friction, and be objective and free of any influence which might affect impartial judgment as to the facts, while being particularly patient with older persons and those with physical or mental impairments. * * * * * " 'The [hearing officer] must be cognizant of the informal nature of a Part B hearing. . . . The hearing is nonadversary in nature in that neither the carrier nor the Medicare Bureau is in opposition to the party but is interested only in seeing that a proper decision is made.' " App. 22, 31-32, quoting Dept. of HEW, Medicare Part B Carriers Manual, ch. XII, pp. 12-21, 12-29 (1980). Cf. Richardson v. Perales, 402 U.S. 389, 403, 91 S.Ct. 1420, 1428, 28 L.Ed.2d 842 (1971) ("congressional plan" is that social security administrative system will operate essentially "as an adjudicator and not as an advocate or adversary"). 12 The claim determination and appeal process available for Part A claims differs from the Part B procedure. See generally 42 CFR part 405, subpart G (1980), as amended, 45 Fed.Reg. 73932-73933 (1980). See also United States v. Erika, Inc., 456 U.S., at 206-207, and nn. 8 and 9, 102 S.Ct., at 1653-1654, and nn. 8 and 9. 13 No authoritative factual findings were made, and perhaps this conclusion would have been difficult to prove. It is known that in 1980 about 158 million Part B claims—up from 124 million in 1978—were filed. Even though the additional review would be available only for disputes in excess of $100, a small percentage of the number of claims would be large in terms of number of cases. 14 The District Court's opinion may be read as requiring that hearing officers always be attorneys. Our cases, however, make clear that due process does not make such a uniform requirement. See Vitek v. Jones, 445 U.S. 480, 499, 100 S.Ct. 1254, 1266, 63 L.Ed.2d 552 (1980) (POWELL, J., concurring in part); Parham v. J. R., 442 U.S. 584, 607, 99 S.Ct. 2493, 2506, 61 L.Ed.2d 101 (1979); Morrissey v. Brewer, 408 U.S. 471, 486, 489, 92 S.Ct. 2593, 2602, 2604, 33 L.Ed.2d 484 (1972). Cf. Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287 (1970). Neither the District Court in its opinion nor the appellees before us make a particularized showing of the additional value of a law degree in the Part B context. 15 The record contains information on nine hearing officers. Two were retired administrative law judges with 15 to 18 years of judging experience, five had extensive experience in medicine or medical insurance, one had been a practicing attorney for 20 years, and one was an attorney with 42 years' experience in the insurance industry who was self-employed as an insurance adjuster. Record, App. to Defendants' Reply to Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Summary Judgment 626, 661-662, 682-685.

34

456 U.S. 212 102 S.Ct. 1656 72 L.Ed.2d 21 INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, et al., Petitioners,v.ALLIED INTERNATIONAL, INC. No. 80-1663. Argued Jan. 18, 1982. Decided April 20, 1982. Syllabus Respondent is an American importer of Russian wood products and had contracts with an American shipper for shipment of the products from the Soviet Union to American ports. The shipper in turn employed a stevedoring company to unload its ships. The stevedore's employees were members of petitioner longshoremen's union (hereafter petitioner). Petitioner, as a protest against the Russian invasion of Afghanistan, refused to handle cargoes arriving from or destined for the Soviet Union. As a result respondent's shipments and business were disrupted completely. Respondent then brought an action in Federal District Court for damages under § 303 of the Labor Management Relations Act, claiming that petitioner's refusal to unload respondent's shipments constituted an illegal secondary boycott under § 8(b)(4)(B) of the National Labor Relations Act. Section 8(b)(4)(B) prohibits a labor union from engaging in activities designed to influence individuals employed by "any person engaged in commerce or in an industry affecting commerce," and from inducing such employees to refuse to handle goods with the object of forcing any person "to cease using, selling, handling, transporting, or otherwise dealing" in the products of, or "to cease doing business" with, another person. The District Court dismissed the complaint, holding that petitioner's boycott was a purely political, primary boycott of Russian goods and thus not within the scope of § 8(b)(4)(B). The Court of Appeals reversed. Held : Petitioner's boycott was an illegal secondary boycott under § 8(b)(4)(B). Pp. 218-227. (a) Petitioner's activity was "in commerce" and within the scope of the National Labor Relations Act. Its refusal to unload respondent's shipments in no way affected the maritime operations of foreign ships, was not aimed at altering the terms of employment of foreign crews, and did not seek to extend the bill of rights of American workers and employers to foreign seamen or shipowners. Accordingly, the longstanding tradition of restraint in applying United States laws to foreign ships is irrelevant. Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709; Windward Shipping (London) Ltd. v. American Radio Assn., 415 U.S. 104, 94 S.Ct. 959, 39 L.Ed.2d 195; and American Radio Assn. v. Mobile S.S. Assn., 419 U.S. 215, 95 S.Ct. 409, 42 L.Ed.2d 399, distinguished. Pp. 219-222. (b) By its terms, § 8(b)(4)(B)'s prohibition against secondary boycotts applies to the facts of this case. Petitioner's sole complaint was with the Soviet Union's foreign and military policy, and however commendable its objectives might have been, the effect of its action was to impose a heavy burden on neutral employers. It is just such a burden that the secondary boycott provisions were designed to prevent. Pp. 222-224 (c) That the specific purpose of petitioner's action was not to halt business between respondent, its shipper, and the stevedore, but to free union members from handling goods from an objectionable source, does not place the action outside the prohibition of secondary boycotts. When a purely secondary boycott reasonably can be expected to threaten neutral parties with ruin or substantial loss, the pressure on those parties must be viewed as at least one of the objects of the boycott or the statutory prohibition would be rendered meaningless. P. 224. (d) Neither is it a defense to the application of § 8(b)(4)(B) that the reason for petitioner's boycott was not a labor dispute with a primary employer but a political dispute with a foreign nation. Section 8(b)(4)(B) contains no exception for "political" secondary boycotts, and its legislative history does not indicate that political disputes should be excluded from its scope. Pp.224-226 (e) That respondent has alleged a violation of § 8(b)(4)(B) does not infringe the First Amendment rights of petitioner or its members. Conduct designed not to communicate but to coerce merits little consideration under that Amendment. Pp. 226-227 1st Cir., 640 F.2d 1368, affirmed. Ernest L. Mathews, Jr., New York City, for petitioners. Duane R. Batista, Boston, Mass., for respondent. Lawrence G. Wallace, Washington, D. C., for the U. S. as amicus curiae, by special leave of Court. Justice POWELL delivered the opinion of the Court. 1 The question for our decision is whether a refusal by an American longshoremen's union to unload cargoes shipped from the Soviet Union is an illegal secondary boycott under § 8(b)(4) of the National Labor Relations Act (NLRA), 61 Stat. 141, as amended, 29 U.S.C. § 158(b)(4). 2 * On January 9, 1980, Thomas Gleason, president of the International Longshoremen's Association (ILA), ordered ILA members to stop handling cargoes arriving from or destined for the Soviet Union. Gleason took this action to protest the Russian invasion of Afghanistan.1 In obedience to the order, longshoremen up and down the east and gulf coasts refused to service ships carrying Russian cargoes.2 3 Respondent Allied International, Inc. (Allied), is an American company that imports Russian wood products for resale in the United States. Allied contracts with Waterman Steamship Lines (Waterman), an American corporation operating ships of United States registry, for shipment of the wood from Leningrad to ports on the east and gulf coasts of the United States. Waterman, in turn, employs the stevedoring company of John T. Clark & Son of Boston, Inc. (Clark), to unload its ships docking in Boston. Under the terms of the collective-bargaining agreement between ILA Local 799 and the Boston Shipping Association, of which Clark is a member, Clark obtains its longshoring employees through the union hiring hall.3 4 As a result of the boycott, Allied's shipments were disrupted completely. Ultimately, Allied was forced to renegotiate its Russian contracts, substantially reducing its purchases and jeopardizing its ability to supply its own customers. App. 24a-28a. On March 31, 1980, after union officials informed Allied that ILA members would continue to refuse to unload any Russian cargo, Allied brought this action in the United States District Court for the District of Massachusetts. Claiming that the boycott violated the prohibition against secondary boycotts in § 8(b)(4) of the NLRA, 29 U.S.C. § 158(b)(4),4 Allied sued for damages under § 303 of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 158, as amended, 29 U.S.C. § 187,5 which creates a private damages remedy for the victims of secondary boycotts.6 At about the same time, Allied filed an unfair labor practice charge with the National Labor Relations Board under § 10(b) of the NLRA, 29 U.S.C. § 160(b).7 5 Finding that Allied had not alleged a violation of § 8(b)(4)(B), the District Court dismissed Allied's complaint. 492 F.Supp. 334 (1980). The court characterized the ILA boycott as a purely political, primary boycott of Russian goods.8 So described, the boycott was not within the scope of § 8(b)(4).9 6 The Court of Appeals for the First Circuit reversed the dismissal of Allied's complaint and remanded for further proceedings. 640 F.2d 1368 (1981). As an initial matter, and in agreement with the District Court, the court found that the effects of the ILA boycott were "in commerce" within the meaning of the NLRA as interpreted by a long line of decisions of this Court.10 The court held further that the ILA boycott, as described in Allied's averments, was within § 8(b)(4)'s prohibition of secondary boycotts, despite its political purpose, and that resort to such behavior was not protected activity under the First Amendment.11 7 We granted certiorari to determine the coverage of the secondary boycott provisions of the NLRA in this setting. 454 U.S. 814, 102 S.Ct. 90, 70 L.Ed.2d 83 (1981). We affirm. II 8 Our starting point in a case of this kind must be the language of the statute. By its exact terms the secondary boycott provisions of § 8(b)(4)(B) of the NLRA would appear to be aimed precisely at the sort of activity alleged in this case. Section 8(b)(4)(B) governs activities designed to influence individuals employed by "any person engaged in commerce or in an industry affecting commerce."12 Certainly Allied, Waterman, and Clark were engaged "in commerce," and Allied alleges that the effect of the ILA action was to obstruct commerce up and down the east and gulf coasts.13 Just as plainly, it would appear that the ILA boycott fell within § 8(b)(4)(B)'s prohibition of secondary boycotts. Allied alleges that by inducing members of the union to refuse to handle Russian cargoes, the ILA boycott was designed to force Allied, Waterman, and Clark "to cease doing business" with one another and "to cease using, selling, handling, transporting, or otherwise dealing in" Russian products. 9 Notwithstanding the language of the statute, petitioners argue that their conduct was not "in commerce" as our decisions have interpreted that term. They argue as well that even if the ILA activity were within the jurisdictional scope of § 8(b)(4), the boycott was not the sort of secondary boycott Congress intended to proscribe. We address these arguments in turn. A. 10 In a line of cases beginning with Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957),14 the Court has held that the "maritime operations of foreign-flag ships employing alien seamen are not in 'commerce' " as this term is used in the NLRA.15 Thus, in Benz the Court held that picketing by an American union in support of striking foreign crewmembers of a foreign-flag vessel was not governed by the Act. Relying upon the legislative history of the NLRA and the longstanding principles of comity in the treatment of foreign vessels, the Court held that the labor laws were not designed "to resolve labor disputes between nationals of other countries operating ships under foreign laws." Id., at 143, 77 S.Ct., at 702.16 11 More recently in Windward Shipping, Ltd. v. American Radio Assn., 415 U.S. 104, 94 S.Ct. 959, 39 L.Ed.2d 195 (1974), and American Radio Assn v. Mobile S. S. Assn., 419 U.S. 215, 95 S.Ct. 409, 42 L.Ed.2d 399 (1974), the Court again identified the limits to the jurisdictional reach of the labor laws in the context of foreign vessels. In Windward, American maritime unions picketed foreign-flag vessels to call attention to the lower wages paid to foreign seamen and to the adverse effect of these lower wages on American seamen. Finding that the picketing was designed to raise the operating costs of foreign vessels and that it had "more than a negligible impact on the 'maritime operations' of these foreign ships," 415 U.S., at 114, 94 S.Ct., at 965, the Court held that the union's activity was not "in commerce" under the labor laws. Id., at 115, 94 S.Ct., at 965. 12 Facing the identical activity by maritime unions in Mobile, the Court reached the same conclusion. The complainants in Mobile were not foreign shipowners, as in Windward, but parties feeling the secondary effects of the union's protest—American stevedoring companies and an American shipper. The Court held that this change in complaining parties did not alter the jurisdictional reach of the Act. The Benz line of cases did not permit "a bifurcated view of the effects of a single group of pickets at a single site." Mobile, supra, at 222, 95 S.Ct., at 414. The refusal of American stevedores to cross the picket lines "was a crucial part of the mechanism by which the maritime operations of the foreign ships were to be affected." 419 U.S., at 224, 95 S.Ct., at 415. 13 Applying the principles developed in these cases to the circumstances here, we find that the ILA's activity was "in commerce" and within the scope of the NLRA. Unlike the situation in every case from Benz through Mobile, the ILA's refusal to unload Allied's shipments in no way affected the maritime operations of foreign ships. The boycott here did not aim at altering the terms of employment of foreign crews on foreign-flag vessels. It did not seek to extend the bill of rights developed for American workers and American employers to foreign seamen and foreign shipowners. The longstanding tradition of restraint in applying the laws of this country to ships of a foreign country—a tradition that lies at the heart of Benz and every subsequent decision—therefore is irrelevant to this case.17 As the Court of Appeals explained, this drama was "played out by an all-American cast." 640 F.2d, at 1374. "[A]n American union has ordered its members not to work for an American stevedore which had contracted to service an American ship carrying goods of an American importer." Id., at 1372. In these circumstances, the clear language of the statute needs no further explication. B 14 The secondary boycott provisions in § 8(b)(4)(B) prohibit a union from inducing employees to refuse to handle goods with the object of forcing any person to cease doing business with any other person.18 By its terms the statutory prohibition applies to the undisputed facts of this case. The ILA has no dispute with Allied, Waterman, or Clark. It does not seek any labor objective from these employers.19 Its sole complaint is with the foreign and military policy of the Soviet Union. As understandable and even commendable as the ILA's ultimate objectives may be, the certain effect of its action is to impose a heavy burden on neutral employers. And it is just such a burden, as well as widening of industrial strife, that the secondary boycott provisions were designed to prevent.20 As the NLRB explained in ruling upon the Regional Director's complaint against the ILA: 15 "It is difficult to imagine a situation that falls more squarely within the scope of Section 8(b)(4) than the one before us today. Here, the Union's sole dispute is with the USSR over its invasion of Afghanistan. Allied, Waterman, and Clark have nothing to do with this dispute. Yet the Union's actions in furtherance of its disagreement with Soviet foreign policy have brought direct economic pressure on all three parties and have resulted in a substantial cessation of business. Thus, the conduct alleged in this case is precisely the type of conduct Congress intended the National Labor Relations Act to regulate." International Longshoremen's Assn., AFL-CIO (Allied International, Inc.), 257 N.L.R.B. 1075, 1078-1079 (1981) (footnote omitted). 16 Nor can it be argued that the ILA's action was outside of the prohibition on secondary boycotts because its object was not to halt business between Allied, Clark, and Waterman with respect to Russian goods, but simply to free ILA members from the morally repugnant duty of handling Russian goods. Such an argument misses the point. Undoubtedly many secondary boycotts have the object of freeing employees from handling goods from an objectionable source. Nonetheless, when a purely secondary boycott "reasonably can be expected to threaten neutral parties with ruin or substantial loss," NLRB v. Retail Store Employees, 447 U.S. 607, 614, 100 S.Ct. 2372, 2377, 65 L.Ed.2d 377 (1980), the pressure on secondary parties must be viewed as at least one of the objects of the boycott or the statutory prohibition would be rendered meaningless.21 The union must take responsibility for the "foreseeable consequences" of its conduct. Id., at 614, n. 9, 100 S.Ct., at 2377, n. 9; see NLRB v. Operating Engineers, 400 U.S. 297, 304-305, 91 S.Ct. 402, 407-408, (1971). Here the union was fully aware of the losses it was inflicting upon Allied. It is undisputed that Allied officials endeavored to persuade ILA leaders to allow it to fulfill its Russian contracts. On the basis of the record before it, the Court of Appeals correctly concluded that Allied had alleged a violation of § 8(b)(4).22 17 Neither is it a defense to the application of § 8(b)(4) that the reason for the ILA boycott was not a labor dispute with a primary employer but a political dispute with a foreign nation. Section 8(b)(4) contains no such limitation. In the plainest of language it prohibits "forcing . . . any person to cease . . . handling . . . the products of any other producer . . . or to cease doing business with any other person." The legislative history does not indicate that political disputes should be excluded from the scope of § 8(b)(4). The prohibition was drafted broadly to protect neutral parties, "the helpless victims of quarrels that do not concern them at all." H.R. Rep. No. 245, 80th Cong., 1st Sess., 23 (1947). Despite criticism from President Truman as well as from some legislators that the secondary boycott provision was too sweeping, the Congress refused to narrow its scope. Recognizing that "[i]llegal boycotts take many forms," id., at 24, Congress intended its prohibition to reach broadly.23 18 We would create a large and undefinable exception to the statute if we accepted the argument that "political" boycotts are exempt from the secondary boycott provision. The distinction between labor and political objectives would be difficult to draw in many cases. In the absence of any limiting language in the statute or legislative history, we find no reason to conclude that Congress intended such a potentially expansive exception to a statutory provision purposefully drafted in broadest terms. 19 We agree with the Court of Appeals that it is "more rather than less objectionable that a national labor union has chosen to marshal against neutral parties the considerable powers derived by its locals and itself under the federal labor laws in aid of a random political objective far removed from what has traditionally been thought to be the realm of legitimate union activity." 640 F.2d, at 1378. In light of the statutory language and purpose, we decline to create a far-reaching exemption from the statutory provision for "political" secondary boycotts.24 III 20 Application of § 8(b)(4) to the ILA's activity in this case will not infringe upon the First Amendment rights of the ILA and its members. We have consistently rejected the claim that secondary picketing by labor unions in violation of § 8(b)(4) is protected activity under the First Amendment. See, e.g., NLRB v. Retail Store Employees, supra, at 616, 100 S.Ct., at 2378; American Radio Assn. v. Mobile S.S. Assn., 419 U.S., at 229-231, 95 S.Ct., at 417-418. Cf. NLRB v. Fruit Packers, 377 U.S. 58, 63, 84 S.Ct. 1063, 1066, 12 L.Ed.2d 129 (1964).25 It would seem even clearer that conduct designed not to communicate but to coerce merits still less consideration under the First Amendment.26 The labor laws reflect a careful balancing of interests. See NLRB v. Retail Store Employees, 447 U.S., at 617, 100 S.Ct., at 2378 (BLACKMUN, J., concurring). There are many ways in which a union and its individual members may express their opposition to Russian foreign policy without infringing upon the rights of others. The judgment of the Court of Appeals is 21 Affirmed. 1 The directive provided: "In response to overwhelming demands by the rank and file members of the Union, the leadership of ILA today ordered immediate suspension in handling all Russian ships and all Russian cargoes in ports from Maine to Texas and Puerto Rico where ILA workers are employed. "This order is effective across the board on all vessels and all cargoes. Grain and other foods as well as high valued general freight. However, any Russian ship now in process of loading or discharging at a waterfront will be worked until completion. "The reason for this action should be apparent in light of international events that have affected relations between the U.S. and the Soviet Union. "However, the decision by the Union leadership was made necessary by the demands of the workers. "It is their will to refuse to work Russian vessels and Russian cargoes under present conditions in the world. "People are upset and they refuse to continue the business as usual policy as long as the Russians insist on being international bully boys. It is a decision in which the Union leadership concurs." App. 10a-11a. 2 Several lawsuits have resulted from the ILA's Russian boycott. See Baldovin v. International Longshoremen's Assn., 626 F.2d 445 (CA5 1980); New Orleans S.S. Assn. v. General Longshore Workers, ILA, 626 F.2d 455 (CA5 1980), cert. granted sub nom. Jacksonville Bulk Terminals, Inc., v. Longshoremen, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981). 3 Article 40 of the collective-bargaining agreement contains a broad no-strike, no-lockout clause: "The Employers agree that there shall be no lockout or work stoppage by the Employers, and the Union agrees that there shall be no strike or work stoppage by the employees. The right of the employees not to cross a bona-fide picket line is recognized by the Employers." App. 29a. 4 Section 8(b) provides in relevant part: "It shall be an unfair labor practice for a labor organization or its agents— * * * * * (4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is— * * * * * "(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person. . . ." 5 Section 303 of the LMRA, 61 Stat. 158, as amended and as set forth in 29 U.S.C. § 187, provides in pertinent part: "(a) It shall be unlawful, for the purpose of this section only, in an industry or activity affecting commerce, for any labor organization to engage in any activity or conduct defined as an unfair labor practice in section 158(b)(4) of this title. "(b) Whoever shall be injured in his business or property by reason [of] any violation of subsection (a) of this section may sue therefor in any district court of the United States . . . and shall recover the damages by him sustained and the cost of the suit." 6 Allied also alleged that the ILA boycott violated the Sherman Act, 15 U.S.C. § 1, and amounted to a tortious interference with Allied's business relationships in violation of admiralty law. The Court of Appeals affirmed the District Court's dismissal of these claims, and they are not before us now. See 640 F.2d 1368, 1379-1382 (CA1 1981). 7 On March 26, 1980, the Regional Director issued an unfair labor practice complaint against the ILA and filed a request for a preliminary injunction in Federal District Court. Finding that the ILA boycott was a political dispute outside the scope of § 8(b)(4)(B), the District Court denied the request for a preliminary injunction. Walsh v. International Longshoremen's Assn., 488 F.Supp. 524 (Mass.1980). The Court of Appeals affirmed on a different theory. Walsh v. International Longshoremen's Assn., 630 F.2d 864 (CA1 1980). It found that the denial of the Board's earlier request for injunctive relief against the boycott in Baldovin v. International Longshoremen's Assn., Civ. No. 80-259 (SD Tex. Feb. 15, 1980), aff'd, 626 F.2d 445 (CA5 1980), had preclusive effect. 8 Allied's suit for damages was consolidated with Walsh v. International Longshoremen's Assn., supra. In dismissing Allied's claim for damages, the District Court relied upon its characterization of the ILA boycott in Walsh as the law of the case. 492 F.Supp., at 336. 9 " 'The ILA had not induced a strike against Allied, Waterman, or Clark . . .; nor does it seek to pressure those employers not to deal with one another. No picket lines have been established and no other employees have been prevented from work. . . . This is a primary boycott of Russian goods, with incidental effects upon those employers who deal in such goods. As such, the actions of the respondents may not be prohibited by §§ 8(b)(4)(i), (ii)(b).' " Ibid., quoting Walsh v. International Longshoremen's Assn., 488 F.Supp., at 530-531. 10 In so holding, the court differed with the conclusion reached by the Court of Appeals for the Fifth Circuit in Baldovin v. International Longshoremen's Assn., supra.. 11 The NLRB reached the same conclusion in its decision upon the Regional Director's complaint against the ILA. See n. 7, supra. The Board held that the ILA's refusal to unload Allied's shipments was "in commerce" and amounted to a secondary boycott in violation of §§ 8(b)(4)(i) and (ii)(B). The Board issued a cease-and-desist order to Local 799 requiring it to unload Allied's shipments. International Longshoremen's Assn., AFL-CIO (Allied International, Inc.), 257 N.L.R.B. 1075 (1981). Petitions to review the Board's decision and order were filed by both the ILA and Allied and are now pending before the United States Court of Appeals for the District of Columbia Circuit. 12 The terms "commerce" and "affecting commerce" are defined in §§ 2(6) and (7), 29 U.S.C. §§ 152(6) and (7), as amended by the LMRA, as follows: "(6) The term 'commerce' means trade, traffic, commerce, transportation, or communication among the several States, or between the District of Columbia or any Territory of the United States and any State or other Territory, or between any foreign country and any State, Territory, or the District of Columbia, or within the District of Columbia or any Territory, or between points in the same State but through any other State or any Territory or the District of Columbia or any foreign country. "(7) The term 'affecting commerce' means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce." 13 "At first blush, it might appear too plain for discussion that the ILA's refusal to unload Allied's goods affects both commerce and a person engaged in commerce. Allied, Waterman and Clark are American companies and the ILA is an American union. All engage regularly in business affecting the transportation of goods among the several states. Indeed, the instant dispute arose when the ILA's actions allegedly impeded Allied's ability to move its wood products from Boston to other ports along the East coast, and Allied contends that the ILA continues to frustrate its ability to transport its goods into this country." 640 F.2d, at 1371. 14 See McCulloch v. Sociedad Nacional, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963); Incres S. S. Co. v. Maritime Workers, 372 U.S. 24, 83 S.Ct. 611, 9 L.Ed.2d 557 (1963); Longshoremen v. Ariadne Co., 397 U.S. 195, 90 S.Ct. 872, 25 L.Ed.2d 218 (1970); Windward Shipping, Ltd. v. American Radio Assn., 415 U.S. 104, 94 S.Ct. 959, 39 L.Ed.2d 195 (1974); American Radio Assn. v. Mobile S. S. Assn., 419 U.S. 215, 95 S.Ct. 409, 42 L.Ed.2d 399 (1974). 15 Incres S. S. Co. v. Maritime Workers, supra, at 27, 83 S.Ct. at 613. The Court noted in a later case that the "term 'in commerce,' as used in the LMRA, is obviously not self-defining." Windward Shipping, Ltd. v. American Radio Assn., supra, at 112, 94 S.Ct., at 964. 16 The Court adhered to a similar approach in the companion cases of McCulloch v. Sociedad Nacional, supra, and Incres S.S. Co. v. Maritime Workers, supra. In McCulloch the Court held that the National Labor Relations Board did not have jurisdiction to determine the union representation of a foreign crew aboard a foreign vessel. In Incres the Court held that organizational picketing by an American union seeking to organize foreign seamen on a foreign-flag vessel also was outside the Board's jurisdiction. 17 Jurisdiction in the NLRA over the ILA boycott is consistent with two further considerations. The ILA boycott is a national boycott affecting ports throughout the United States. Were the effects of this boycott not "in commerce," complaining parties such as Allied could seek relief in state courts. The possibility of conflicting decisions by a multitude of state courts frustrates one of the basic purposes of the NLRA—to establish a uniform national labor policy. Moreover, the ILA boycott commenced just a few days after President Carter ordered a boycott on exports to the Soviet Union. It differed in significant respects from that embargo. See 16 Weekly Comp. of Pres. Doc. 42 (1980). On February 16, 1980, the Legal Adviser of the State Department informed the Attorney General "that the Department of State believes that the action of the ILA conflicts with significant U.S. foreign policy interests." Supplementary Memorandum in Support of Motion for Preliminary Injunction, Attachment A. Federal jurisdiction is supported by the national interests affected by the ILA boycott. See International Longshoremen's Assn., AFL-CIO (Allied International, Inc.), 257 N.L.R.B. at 1077 ("this case presents the novel situation of a labor union establishing a national boycott contravening a Federal policy"). 18 In Carpenters v. NLRB, 357 U.S. 93, 98, 78 S.Ct. 1011, 1015, 2 L.Ed.2d 1186 (1958), the Court described the elements of a § 8(b)(4) violation as threefold: "Employees must be induced; they must be induced to engage in a strike or concerted refusal; an object must be to force or require their employer or another person to cease doing business with a third person." 19 "We think it plain that the ILA was not engaged in primary activity and that the boycott against Allied's goods was 'calculated to satisfy union objectives elsewhere.' The ILA concedes it has no dispute with Clark, Waterman or Allied, and there is no suggestion that it seeks to affect the labor relations of any of these employers. It is also plain that these 'unoffending employers' have been embroiled in a 'controversy not their own' as a result of union action which 'reasonably could be expected' to 'threaten a neutral party with ruin or substantial loss.' " 640 F.2d, at 1377. 20 Justice Frankfurter explained that Congress "aimed to restrict the area of industrial conflict insofar as this could be achieved by prohibiting the most obvious, widespread, and, as Congress evidently judged, dangerous practice of unions to widen that conflict: the coercion of neutral employers." Carpenters v. NLRB, supra, at 100, 78 S.Ct., at 1016. The Court frequently has described the purpose of the secondary boycott provisions as twofold: the preservation of the right of labor organizations to place pressure on employers with whom there is a primary dispute as well as the protection of neutral employers and employees from the labor disputes of others. See, e.g., NLRB v. Denver Building Trades Council, 341 U.S. 675, 692, 71 S.Ct. 943, 953, 95 L.Ed. 1284 (1951) (noting the "dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own"). In the circumstances of this case, however, only the second of these objectives has any relevance. The ILA had no dispute with Allied, Waterman, or Clark. See n. 19, supra. 21 "It is not necessary to find that the sole object" of the boycott was the disruption of business of neutral parties. NLRB v. Denver Building Trades Council, supra, at 689, 71 S.Ct., at 951. 22 As both the Court of Appeals and the NLRB noted, such a result is particularly appropriate in this case since it is not even arguable that Allied was feeling the secondary effects of a primary dispute protected by the Act. See 640 F.2d, at 1376, n. 6; 257 N.L.R.B., at 1082. We are not faced in this case with the often difficult task of characterizing union activity as either protected primary or prohibited secondary activity. See Electrical Workers v. NLRB, 366 U.S. 667, 673-674, 81 S.Ct. 1285, 1289-1290, 6 L.Ed.2d 592 (1961). 23 Responding to the claim that there were "good secondary boycotts and bad secondary boycotts," Senator Taft stated: "Our committee heard evidence for weeks and never succeeded in having anyone tell us any difference between different kinds of secondary boycotts. So we have so broadened the provision dealing with secondary boycotts as to make them an unfair labor practice." 93 Cong.Rec. 4198 (1947). In NLRB v. Fruit Packers, 377 U.S. 58, 63, 84 S.Ct. 1063, 1066, 12 L.Ed.2d 129 (1964), the Court concluded that Congress did not intend to bar "all peaceful consumer picketing at secondary sites" (emphasis added). 24 Cf. Plumbers & Pipefitters v. Local 334, 452 U.S. 615, 101 S.Ct. 2546, 69 L.Ed.2d 280 (1981) (rejecting view that § 301(a) of the LMRA applies only to disputes between local and parent unions concerning labor-management relations). 25 In Electrical Workers v. NLRB, 341 U.S. 694, 705, 71 S.Ct. 954, 960, 95 L.Ed. 1299 (1951), the Court held: "The prohibition of inducement or encouragement of secondary pressure by § 8(b)(4)(A) carries no unconstitutional abridgement of free speech. The inducement or encouragement in the instant case took the form of picketing . . . [W]e recently have recognized the constitutional right of states to proscribe picketing in furtherance of comparably unlawful objectives. There is no reason why Congress may not do likewise" (footnote omitted). 26 Cf. NLRB v. Retail Store Employees, 447 U.S. 607, 619, 100 S.Ct. 2372, 65 L.Ed.2d 377 (1980) ("The statutory ban in this case affects only that aspect of the union's efforts to communicate its views that calls for an automatic response to a signal, rather than a reasoned response to an idea") (STEVENS, J., concurring); United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968) ("This Court has held that when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms").

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456 U.S. 228 102 S.Ct. 1673 72 L.Ed.2d 33 John R. LARSON, etc., et al., Appellants,v.Pamela VALENTE et al. No. 80-1666. Argued Dec. 9, 1981. Decided April 21, 1982. Rehearing Denied June 7, 1982. See 457 U.S. 1111, 102 S.Ct. 2916. Syllabus A section (§ 309.515, subd. 1(b)) of Minnesota's charitable solicitations Act provides that only those religious organizations that receive more than half of their total contributions from members or affiliated organizations are exempt from the registration and reporting requirements of the Act. The individual appellees, claiming to be followers of the tenets of appellee Unification Church (later joined as a plaintiff) brought suit in Federal District Court seeking a declaration that the statute on its face and as applied to them violated, inter alia, the Establishment Clause of the First Amendment, and also seeking injunctive relief. After obtaining a preliminary injunction, appellees moved for summary judgment. Upon finding that the "overbreadth" doctrine gave appellees standing to challenge the statute, the Magistrate to whom the action had been transferred held that the application of the statute to religious organizations violated the Establishment Clause, and therefore recommended declaratory and permanent injunctive relief. The District Court, accepting this recommendation, entered summary judgment for appellees. The Court of Appeals affirmed on both the standing issue and on the merits. But the court, disagreeing with the District Court's conclusion that appellees and others should enjoy the religious-organization exemption from the Act merely by claiming to be such organizations, held that proof of religious-organization status was required in order to gain the exemption, and left the question of appellees' status "open . . . for further development." Accordingly, the court vacated the District Court's judgment and remanded for entry of a modified injunction and further proceedings. Held : 1. Appellees have Art. III standing to raise their Establishment Clause claims. The State attempted to use § 309.515, subd. 1(b)'s fifty per cent rule to compel the Unification Church to register and report under the Act. The fact that the fifty per cent rule only applies to religious organizations compels the conclusion that, at least for purposes of this suit challenging that application, appellee Unification Church is a religious organization within the meaning of the Act. The controversy between the parties is not rendered any less concrete by the fact that appellants, in the course of this litigation, have changed their position to contend that the Unification Church is not a religious organization within the meaning of the Act and that therefore it would not be entitled to an exemption under § 309.515, subd. 1(b) even if the fifty per cent rule were declared unconstitutional. This is so because the threatened application of § 309.515, subd. 1(b), and its fifty per cent rule to appellees amounts to a distinct and palpable injury to them, in that it disables them from soliciting contributions in Minnesota unless they comply with the registration and reporting requirements of the Act. Moreover, there is a causal connection between the claimed injury and the challenged conduct. The fact that appellees have not yet shown an entitlement to a permanent injunction barring the State from subjecting them to the Act's registration and reporting requirements does not detract from the palpability of the particular and discrete injury caused to appellees. Pp. 238-244. 2. Section 309.515, subd. 1(b), in setting up precisely the sort of official denominational preference forbidden by the First Amendment, violates the Establishment Clause. Pp. 244-255. (a) Since the challenged statute grants denominational preferences, it must be treated as suspect, and strict scrutiny must be applied in adjudging its constitutionality. Pp. 244-246. (b) Assuming, arguendo, that appellants' asserted interest in preventing fraudulent solicitations is a "compelling" interest, appellants have nevertheless failed to demonstrate that § 309.515, subd. 1(b)'s fifty per cent rule is "closely fitted" to that interest. Appellants' argument to the contrary is based on three premises: (1) that members of a religious organization can and will exercise supervision and control over the solicitation activities of the organization when membership contributions exceed fifty per cent; (2) that membership control, assuming its existence, is an adequate safeguard against abusive solicitations of the public; and (3) that the need for public disclosure rises in proportion with the percentage of nonmember contributions. There is no substantial support in the record for any of these premises. Pp.246-251. (c) Where the principal effect of § 309.515, subd. 1(b)'s fifty per cent rule is to impose the Act's registration and reporting requirements on some religious organizations but not on others, the "risk of politicizing religion" inhering in the statute is obvious. Pp. 251-255. 637 F.2d 562, affirmed. Larry Salustro, St. Paul, Minn., for appellants. Barry A. Fisher, Los Angeles, Cal., for appellees. Justice BRENNAN delivered the opinion of the Court. 1 The principal question presented by this appeal is whether a Minnesota statute, imposing certain registration and reporting requirements upon only those religious organizations that solicit more than fifty per cent of their funds from nonmembers, discriminates against such organizations in violation of the Establishment Clause of the First Amendment.1 2 * Appellants are John R. Larson, Commissioner of Securities, and Warren Spannaus, Attorney General, of the State of Minnesota. They are, by virtue of their offices, responsible for the implementation and enforcement of the Minnesota Charitable Solicitation Act, Minn.Stat. §§ 309.50-309.61 (1969 and Supp.1982). This Act, in effect since 1961, provides for a system of registration and disclosure respecting charitable organizations, and is designed to protect the contributing public and charitable beneficiaries against fraudulent practices in the solicitation of contributions for purportedly charitable purposes. A charitable organization subject to the Act must register with the Minnesota Department of Commerce before it may solicit contributions within the State. § 309.52. With certain specified exceptions, all charitable organizations registering under § 309.52 must file an extensive annual report with the Department, detailing, inter alia, their total receipts and income from all sources, their costs of management, fundraising, and public education, and their transfers of property or funds out of the State, along with a description of the recipients and purposes of those transfers. § 309.53. The Department is authorized by the Act to deny or withdraw the registration of any charitable organization if the Department finds that it would be in "the public interest" to do so and if the organization is found to have engaged in fraudulent, deceptive, or dishonest practices. § 309.532, subd. 1 (Supp.1982). Further, a charitable organization is deemed ineligible to maintain its registration under the Act if it expends or agrees to expend an "unreasonable amount" for management, general, and fundraising costs, with those costs being presumed unreasonable if they exceed thirty per cent of the organization's total income and revenue. § 309.555, subd. 1a (Supp.1982). 3 From 1961 until 1978, all "religious organizations" were exempted from the requirements of the Act.2 But effective March 29, 1978, the Minnesota Legislature amended the Act so as to include a "fifty per cent rule" in the exemption provision covering religious organizations. § 309.515, subd. 1(b). This fifty per cent rule provided that only those religious organizations that received more than half of their total contributions from members or affiliated organizations would remain exempt from the registration and reporting requirements of the Act. 1978 Minn.Laws, ch. 601, § 5.3 4 Shortly after the enactment of § 309.515, subd. 1(b), the Department notified appellee Holy Spirit Association for the Unification of World Christianity (Unification Church) that it was required to register under the Act because of the newly enacted provision.4 Appellees Valente, Barber, Haft, and Korman, claiming to be followers of the tenets of the Unification Church, responded by bringing the present action in the United States District Court for the District of Minnesota. Appellees sought a declaration that the Act, on its face and as applied to them through § 309.515, subd. 1(b)'s fifty per cent rule, constituted an abridgment of their First Amendment rights of expression and free exercise of religion, as well as a denial of their right to equal protection of the laws, guaranteed by the Fourteenth Amendment;5 appellees also sought temporary and permanent injunctive relief. Appellee Unification Church was later joined as a plaintiff by stipulation of the parties, and the action was transferred to a United States Magistrate. 5 After obtaining a preliminary injunction,6 appellees moved for summary judgment. Appellees' evidentiary support for this motion included a "declaration" of appellee Haft, which described in some detail the origin, "religious principles," and practices of the Unification Church. App. A-7—A-14. The declaration stated that among the activities emphasized by the Church were "door-to-door and public-place proselytizing and solicitation of funds to support the Church," id., at A-8, and that the application of the Act to the Church through § 309.515, subd. 1(b)'s fifty per cent rule would deny its members their "religious freedom," id., at A-14. Appellees also argued that by discriminating among religious organizations, § 309.515, subd. 1(b)'s fifty per cent rule violated the Establishment Clause. 6 Appellants replied that the Act did not infringe appellees' freedom to exercise their religious beliefs. Appellants sought to distinguish the present case from Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943), where this Court invalidated a municipal ordinance that had required the licensing of Jehovah's Witnesses who solicited donations in exchange for religious literature, by arguing that unlike the activities of the petitioners in Murdock, appellees' solicitations bore no substantial relationship to any religious expression, and that they were therefore outside the protection of the First Amendment.7 Appellants also contended that the Act did not violate the Establishment Clause. Finally, appellants argued that appellees were not entitled to challenge the Act until they had demonstrated that the Unification Church was a religion and that its fundraising activities were a religious practice. 7 The Magistrate determined, however, that it was not necessary for him to resolve the questions of whether the Unification Church was a religion, and whether appellees' activities were religiously motivated, in order to reach the merits of appellees' claims. Rather, he found that the "overbreadth" doctrine gave appellees standing to challenge the Act's constitutionality. On the merits, the Magistrate held that the Act was facially unconstitutional with respect to religious organizations, and was therefore entirely void as to such organizations, because § 309.515, subd. 1(b)'s fifty per cent rule failed the second of the three Establishment Clause "tests" set forth by this Court in Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971).8 The Magistrate also held on due process grounds that certain provisions of the Act were unconstitutional as applied to any groups or persons claiming the religious-organization exemption from the Act. The Magistrate therefore recommended, inter alia, that appellees be granted the declarative and permanent injunctive relief that they had sought namely, a declaration that the Act was unconstitutional as applied to religious organizations and their members, and an injunction against enforcement of the Act as to any religious organization. Accepting these recommendations, the District Court entered summary judgment in favor of appellees on these issues.9 8 On appeal, the United States Court of Appeals for the Eighth Circuit affirmed in part and reversed in part. 637 F.2d 562 (1981). On the issue of standing, the Court of Appeals affirmed the District Court's application of the overbreadth doctrine, citing Village of Schaumburg v. Citizens for Better Environment, 444 U.S. 620, 634, 100 S.Ct. 826, 834-835, 63 L.Ed.2d 73 (1980), for the proposition that "a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the court." 637 F.2d, at 564-565. On the merits, the Court of Appeals affirmed the District Court's holding that the "inexplicable religious classification" embodied in the fifty per cent rule of § 309.515, subd. 1(b), violated the Establishment Clause.10 Id., at 565-570. Applying the Minnesota rule of severability, the Court of Appeals also held that § 309.515, subd. 1(b), as a whole should not be stricken from the Act, but rather that the fifty per cent rule should be stricken from § 309.515, subd. 1(b). Id., at 570. But the court disagreed with the District Court's conclusion that appellees and others should enjoy the religious-organization exemption from the Act merely by claiming to be such organizations: The court held that proof of religious-organization status was required in order to gain the exemption, and left the question of appellees' status "open . . . for further development." Id., at 570-571. The Court of Appeals accordingly vacated the judgment of the District Court and remanded the action for entry of a modified injunction and for further appropriate proceedings. Id., at 571.11 We noted probable jurisdiction. 452 U.S. 904, 101 S.Ct. 3028, 69 L.Ed.2d 404 (1981). II 9 Appellants argue that appellees are not entitled to be heard on their Establishment Clause claims. Their rationale for this argument has shifted, however, as this litigation has progressed. Appellants' position in the courts below was that the Unification Church was not a religion, and more importantly that appellees' solicitations were not connected with any religious purpose. From these premises appellants concluded that appellees were not entitled to raise their Establishment Clause claims until they had demonstrated that their activities were within the protection of that Clause. The courts below rejected this conclusion, instead applying the overbreadth doctrine in order to allow appellees to raise their Establishment Clause claims. In this Court, appellants have taken an entirely new tack. They now argue that the Unification Church is not a "religious organization" within the meaning of Minnesota Charitable Solicitation Act, and that the Church therefore would not be entitled to an exemption under § 309.515, subd. 1(b), even if the fifty per cent rule were declared unconstitutional. From this new premise appellants conclude that the courts below erred in invalidating § 309.515, subd. 1(b)'s fifty per cent rule without first requiring appellees to demonstrate that they would have been able to maintain their exempt status but for that rule, and thus that its adoption had caused them injury in fact. We have considered both of appellants' rationales, and hold that neither of them has merit. 10 "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.' " Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978), quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). This requirement of a "personal stake" must consist of "a 'distinct and palpable injury . . .' to the plaintiff," Duke Power Co., supra, at 72, 98 S.Ct., at 2630, quoting Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), and "a 'fairly traceable' causal connection between the claimed injury and the challenged conduct," Duke Power Co., supra, at 72, 98 S.Ct., at 2630, quoting Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977). Application of these constitutional standards to the record before us and the factual findings of the District Court convince us that the Art. III requirements for standing are plainly met by appellees. 11 Appellants argue in this Court that the Unification Church is not a "religious organization" within the meaning of the Act, and therefore that appellees cannot demonstrate injury in fact. We note at the outset, however, that in the years before 1978 the Act contained a general exemption provision for all religious organizations, and that during those years the Unification Church was not required by the State to register and report under the Act. It was only in 1978, shortly after the addition of the fifty per cent rule to the religious-organization exemption, that the State first attempted to impose the requirements of the Act upon the Unification Church. And when the State made this attempt, it deliberately chose to do so in express and exclusive reliance upon the newly enacted fifty per cent rule of § 309.515, subd. 1(b). See n. 4,supra.12 The present suit was initiated by appellees in direct response to that attempt by the State to force the Church's registration. It is thus plain that appellants' stated rationale for the application of the Act to appellees was that § 309.515, subd. 1(b), did apply to the Unification Church.13 But § 309.515, subd. 1(b), by its terms applies only to religious organizations. It follows, therefore, that an essential premise of the State's attempt to require the Unification Church to register under the Act by virtue of the fifty per cent rule in § 309.515, subd. 1(b), is that the Church is a religious organization. It is logically untenable for the State to take the position that the Church is not such an organization, because that position destroys an essential premise of the exercise of statutory authority at issue in this suit. 12 In the courts below, the State joined issue precisely on the premise that the fifty per cent rule of § 309.515, subd. 1(b), was sufficient authority in itself to compel appellees' registration. The adoption of that premise precludes the position that the Church is not a religious organization. And it remains entirely clear that if we were to uphold the constitutionality of the fifty per cent rule, the State would, without more, insist upon the Church's registration. In this Court, the State has changed its position, and purports to find independent bases for denying the Church an exemption from the Act. Considering the development of this case in the courts below, and recognizing the premise inherent in the State's attempt to apply the fifty per cent rule to appellees, we do not think that the State's change of position renders the controversy between these parties any less concrete. The fact that appellants chose to apply § 309.515, subd. 1(b), and its fifty per cent rule as the sole statutory authority requiring the Church to register under the Act compels the conclusion that, at least for purposes of this suit challenging that State application, the Church is indeed a religious organization within the meaning of the Act. 13 With respect to the question of injury in fact, we again take as the starting point of our analysis the fact that the State attempted to use § 309.515, subd. 1(b)'s fifty per cent rule in order to compel the Unification Church to register and report under the Act. That attempted use of the fifty per cent rule as the State's instrument of compulsion necessarily gives appellees standing to challenge the constitutional validity of the rule. The threatened application of § 309.515, subd. 1(b), and its fifty per cent rule to the Church surely amounts to a distinct and palpable injury to appellees: It disables them from soliciting contributions in the State of Minnesota unless the Church complies with registration and reporting requirements that are hardly de minimis.14 Just as surely, there is a fairly traceable causal connection between the claimed injury and the challenged conduct here, between the claimed disabling and the threatened application of § 309.515, subd. 1(b), and its fifty per cent rule. 14 Of course, the Church cannot be assured of a continued religious-organization exemption even in the absence of the fifty per cent rule. See n. 30, infra. Appellees have not yet shown an entitlement to the entirety of the broad injunctive relief that they sought in the District Court—namely, a permanent injunction barring the State from subjecting the Church to the registration and reporting requirements of the Act. But that fact by no means detracts from the palpability of the particular and discrete injury caused to appellees by the State's threatened application of § 309.515, subd. 1(b)'s fifty per cent rule. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S., at 261-262, 97 S.Ct., at 561-562. The Church may indeed be compelled, ultimately, to register under the Act on some ground other than the fifty per cent rule, and while this fact does affect the nature of the relief that can properly be granted to appellees on the present record, it does not deprive this Court of jurisdiction to hear the present case. Cf. Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). In sum, contrary to appellants' suggestion, appellees have clearly demonstrated injury in fact. 15 Justice REHNQUIST's dissent attacks appellees' Art. III standing by arguing that appellees "have failed to show that a favorable decision of this Court will redress the injuries of which they complain." Post, at 270. This argument follows naturally from the dissent's premise that the only meaningful relief that can be given to appellees is a total exemption from the requirements of the Act. See post, at 264, 265, 270. But the argument, like the premise, is incorrect. This litigation began after the State attempted to compel the Church to register and report under the Act solely on the authority of § 309.515, subd. 1(b)'s fifty per cent rule. If that rule is declared unconstitutional, as appellees have requested, then the Church cannot be required to register and report under the Act by virtue of that rule. Since that rule was the sole basis for the State's attempt to compel registration that gave rise to the present suit, a discrete injury of which appellees now complain will indeed be completely redressed by a favorable decision of this Court. 16 Furthermore, if the fifty per cent rule of § 309.515, subd. 1(b), is declared unconstitutional, then the Church cannot be compelled to register and report under the Act unless the Church is determined not to be a religious organization. And as the Court of Appeals below observed: 17 "[A] considerable burden is on the state, in questioning a claim of a religious nature. Strict or narrow construction of a statutory exemption for religious organizations is not favored. Washington Ethical Society v. District of Columbia, 249 F.2d 127, 129 (D.C.Cir.1957, Burger, J.)." 637 F.2d, at 570. 18 At the very least, then, a declaration that § 309.515, subd. 1(b)'s fifty per cent rule is unconstitutional would put the State to the task of demonstrating that the Unification Church is not a religious organization within the meaning of the Act—and such a task is surely more burdensome than that of demonstrating that the Church's proportion of nonmember contributions exceeds fifty per cent. Thus appellees will be given substantial and meaningful relief by a favorable decision of this Court.15 19 Since we conclude that appellees have established Art. III standing, we turn to the merits of the case.16 III A. 20 The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another. Before the Revolution, religious establishments of differing denominations were common throughout the Colonies.17 But the Revolutionary generation emphatically disclaimed that European legacy, and "applied the logic of secular liberty to the condition of religion and the churches:"18 If Parliament had lacked the authority to tax unrepresented colonists, then by the same token the newly independent States should be powerless to tax their citizens for the support of a denomination to which they did not belong.19 The force of this reasoning led to the abolition of most denominational establishments at the state level by the 1780's,20 and led ultimately to the inclusion of the Establishment Clause in the First Amendment in 1791.21 21 This constitutional prohibition of denominational preferences is inextricably connected with the continuing vitality of the Free Exercise Clause. Madison once noted: "Security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests and in the other in the multiplicity of sects."22 Madison's vision—freedom for all religion being guaranteed by free competition between religions naturally assumed that every denomination would be equally at liberty to exercise and propagate its beliefs. But such equality would be impossible in an atmosphere of official denominational preference. Free exercise thus can be guaranteed only when legislators—and voters—are required to accord to their own religions the very same treatment given to small, new, or unpopular denominations. As Justice Jackson noted in another context, "there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally." Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112, 69 S.Ct. 463, 466-467, 93 L.Ed. 533 (1949) (concurring opinion). 22 Since Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), this Court has adhered to the principle, clearly manifested in the history and logic of the Establishment Clause, that no State can "pass laws which aid one religion" or that "prefer one religion over another." Id., at 15, 67 S.Ct., at 511. This principle of denominational neutrality has been restated on many occasions. In Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952), we said that "[t]he government must be neutral when it comes to competition between sects." Id., at 314, 72 S.Ct., at 684. In Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), we stated unambiguously: "The First Amendment mandates governmental neutrality between religion and religion. . . . The State may not adopt programs or practices . . . which 'aid or oppose' any religion. . . . This prohibition is absolute." Id., at 104, 106, 89 S.Ct., at 270, 271, citing Abington School District v. Schempp, 374 U.S. 203, 225, 83 S.Ct. 1560, 1573, 10 L.Ed.2d 844 (1963). And Justice Goldberg cogently articulated the relationship between the Establishment Clause and the Free Exercise Clause when he said that "[t]he fullest realization of true religious liberty requires that government . . . effect no favoritism among sects . . . and that it work deterrence of no religious belief." Abington School District, supra, at 305, 83 S.Ct., at 1615. In short, when we are presented with a state law granting a denominational preference, our precedents demand that we treat the law as suspect and that we apply strict scrutiny in adjudging its constitutionality. B 23 The fifty per cent rule of § 309.515, subd. 1(b), clearly grants denominational preferences of the sort consistently and firmly deprecated in our precedents.23 Consequently, that rule must be invalidated unless it is justified by a compelling governmental interest, cf. Widmar v. Vincent, 454 U.S. 263, 269-270, 102 S.Ct. 269, 274, 70 L.Ed.2d 440 (1981), and unless it is closely fitted to further that interest, Murdock v. Pennsylvania, 319 U.S. 105, 116-117, 63 S.Ct. 870, 876-877, 87 L.Ed. 1292 (1943). With that standard of review in mind, we turn to an examination of the governmental interest asserted by appellants. 24 Appellants assert, and we acknowledge, that the State of Minnesota has a significant interest in protecting its citizens from abusive practices in the solicitation of funds for charity, and that this interest retains importance when the solicitation is conducted by a religious organization. We thus agree with the Court of Appeals, 637 F.2d, at 567, that the Act, "viewed as a whole, has a valid secular purpose," and we will therefore assume, arguendo, that the Act generally is addressed to a sufficiently "compelling" governmental interest. But our inquiry must focus more narrowly, upon the distinctions drawn by § 309.515, subd. 1(b), itself: Appellants must demonstrate that the challenged fifty per cent rule is closely fitted to further the interest that it assertedly serves. 25 Appellants argue that § 309.515, subd. 1(b)'s distinction between contributions solicited from members and from nonmembers is eminently sensible. They urge that members are reasonably assumed to have significant control over the solicitation of contributions from themselves to their organization, and over the expenditure of the funds that they contribute, as well. Further, appellants note that as a matter of Minnesota law, members of organizations have greater access than nonmembers to the financial records of the organization. Appellants conclude: 26 "Where the safeguards of membership funding do not exist, the need for public disclosure is obvious. . . . 27 ". . . As public contributions increase as a percentage of total contributions, the need for public disclosure increases. . . . The particular point at which public disclosure should be required . . . is a determination for the legislature. In this case, the Act's 'majority' distinction is a compelling point, since it is at this point that the organization becomes predominantly public-funded." Brief for Appellants 29. 28 We reject the argument, for it wholly fails to justify the only aspect of § 309.515, subd. 1(b), under attack—the selective fifty per cent rule. Appellants' argument is based on three distinct premises: that members of a religious organization can and will exercise supervision and control over the organization's solicitation activities when membership contributions exceed fifty per cent; that membership control, assuming its existence, is an adequate safeguard against abusive solicitations of the public by the organization; and that the need for public disclosure rises in proportion with the percentage of nonmember contributions. Acceptance of all three of these premises is necessary to appellants' conclusion, but we find no substantial support for any of them in the record. 29 Regarding the first premise, there is simply nothing suggested that would justify the assumption that a religious organization will be supervised and controlled by its members simply because they contribute more than half of the organization's solicited income. Even were we able to accept appellants' doubtful assumption that members will supervise their religious organization under such circumstances,24 the record before us is wholly barren of support for appellants' further assumption that members will effectively control the organization if they contribute more than half of its solicited income. Appellants have offered no evidence whatever that members of religious organizations exempted by § 309.515, subd. 1(b)'s fifty per cent rule in fact control their organizations. Indeed, the legislative history of § 309.515, subd. 1(b), indicates precisely to the contrary.25 In short, the first premise of appellants' argument has no merit. 30 Nor do appellants offer any stronger justification for their second premise—that membership control is an adequate safeguard against abusive solicitations of the public by the organization. This premise runs directly contrary to the central thesis of the entire Minnesota charitable solicitations Act—namely, that charitable organizations soliciting contributions from the public cannot be relied upon to regulate themselves, and that state regulation is accordingly necessary.26 Appellants offer nothing to suggest why religious organizations should be treated any differently in this respect. And even if we were to assume that the members of religious organizations have some incentive, absent in non-religious organizations, to protect the interests of nonmembers solicited by the organization, appellants' premise would still fail to justify the fifty per cent rule: Appellants offer no reason why the members of religious organizations exempted under § 309.515, subd. 1(b)'s fifty per cent rule should have any greater incentive to protect nonmembers than the members of nonexempted religious organizations have. Thus we also reject appellants' second premise as without merit. 31 Finally, we find appellants' third premise—that the need for public disclosure rises in proportion with the percentage of nonmember contributions—also without merit. The flaw in appellants' reasoning here may be illustrated by the following example. Church A raises $10 million, 20 per cent from nonmembers. Church B raises $50,000, 60 per cent from nonmembers. Appellants would argue that although the public contributed $2 million to Church A and only $30,000 to Church B, there is less need for public disclosure with respect to Church A than with respect to Church B. We disagree; the need for public disclosure more plausibly rises in proportion with the absolute amount, rather than with the percentage, of nonmember contributions.27 The State of Minnesota has itself adopted this view elsewhere in § 309.515: With qualifications not relevant here, charitable organizations that receive annual nonmember contributions of less than $10,000 are exempted from the registration and reporting requirements of the Act. § 309.515, subd. 1(a). 32 We accordingly conclude that appellants have failed to demonstrate that the fifty per cent rule in § 309.515, subd. 1(b), is "closely fitted" to further a "compelling governmental interest." C 33 In Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), we announced three "tests" that a statute must pass in order to avoid the prohibition of the Establishment Clause. 34 "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243 [88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060] (1968); finally, the statute must not foster 'an excessive governmental entanglement with religion.' Walz [v. Tax Comm'n, 397 U.S. 664, 674, 90 S.Ct. 1409, 1414, 25 L.Ed.2d 697 (1970) ]." Id., at 612-613, 91 S.Ct., at 2111. 35 As our citations of Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), and Walz v. Tax Comm'n, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970), indicated, the Lemon v. Kurtzman "tests" are intended to apply to laws affording a uniform benefit to all religions,28 and not to provisions, like § 309.515, subd. 1(b)'s fifty per cent rule, that discriminate among religions. Although application of the Lemon tests is not necessary to the disposition of the case before us, those tests do reflect the same concerns that warranted the application of strict scrutiny to § 309.515, subd. 1(b)'s fifty per cent rule. The Court of Appeals found that rule to be invalid under the first two Lemon tests. We view the third of those tests as most directly implicated in the present case. Justice Harlan well described the problems of entanglement in his separate opinion in Walz, where he observed that governmental involvement in programs concerning religion 36 "may be so direct or in such degree as to engender a risk of politicizing religion. . . . [R]eligious groups inevitably represent certain points of view and not infrequently assert them in the political arena, as evidenced by the continuing debate respecting birth control and abortion laws. Yet history cautions that political fragmentation on sectarian lines must be guardedagainst. . . . [G]overnment participation in certain programs, whose very nature is apt to entangle the state in details of administration and planning, may escalate to the point of inviting undue fragmentation." 397 U.S., at 695, 90 S.Ct., at 1425. 37 The Minnesota statute challenged here is illustrative of this danger. By their "very nature," the distinctions drawn by § 309.515, subd. 1(b), and its fifty per cent rule "engender a risk of politicizing religion"—a risk, indeed, that has already been substantially realized. 38 It is plain that the principal effect of the fifty per cent rule in § 309.515, subd. 1(b), is to impose the registration and reporting requirements of the Act on some religious organizations but not on others. It is also plain that, as the Court of Appeals noted, "[t]he benefit conferred [by exemption] constitutes a substantial advantage; the burden of compliance with the Act is certainly not de minimis." 637 F.2d, at 568.29 We do not suggest that the burdens of compliance with the Act would be intrinsically impermissible if they were imposed evenhandedly. But this statute does not operate evenhandedly, nor was it designed to do so: The fifty per cent rule of § 309.515, subd. 1(b), effects the selective legislative imposition of burdens and advantages upon particular denominations. The "risk of politicizing religion" that inheres in such legislation is obvious, and indeed is confirmed by the provision's legislative history. For the history of § 309.515, subd. 1(b)'s fifty per cent rule demonstrates that the provision was drafted with the explicit intention of including particular religious denominations and excluding others. For example, the second sentence of an early draft of § 309.515, subd. 1(b), read: "A religious society or organization which solicits from its religious affiliates who are qualified under this subdivision and who are represented in a body or convention that elects and controls the governing board of the religious society or organization is exempt from the requirements of . . . Sections 309.52 and 309.53." Minn.H. 1246, 1977-1978 Sess., § 4 (read Apr. 6, 1978). The legislative history discloses that the legislators perceived that the italicized language would bring a Roman Catholic Archdiocese within the Act, that the legislators did not want the amendment to have that effect, and that an amendment deleting the italicized clause was passed in committee for the sole purpose of exempting the Archdiocese from the provisions of the Act. Transcript of Legislative Discussions of § 309.515, subd. 1(b), as set forth in Declaration of Charles C. Hunter (on file in this Court) 8-9. On the other hand, there were certain religious organizations that the legislators did not want to exempt from the Act. One State Senator explained that the fifty per cent rule was "an attempt to deal with the religious organizations which are soliciting on the street and soliciting by direct mail, but who are not substantial religious institutions in . . . our state." Id., at 13. Another Senator said, "what you're trying to get at here is the people that are running around airports and running around streets and soliciting people and you're trying to remove them from the exemption that normally applies to religious organizations." Id., at 14. Still another Senator, who apparently had mixed feelings about the proposed provision, stated, "I'm not sure why we're so hot to regulate the Moonies anyway." Id., at 16. 39 In short, the fifty per cent rule's capacity—indeed, its express design—to burden or favor selected religious denominations led the Minnesota Legislature to discuss the characteristics of various sects with a view towards "religious gerrymandering," Gillette v. United States, 401 U.S. 437, 452, 91 S.Ct. 828, 837, 28 L.Ed.2d 168 (1971). As THE CHIEF JUSTICE stated in Lemon, 403 U.S., at 620, 91 S.Ct., at 2115: "This kind of state inspection and evaluation of the religious content of a religious organization is fraught with the sort of entanglement that the Constitution forbids. It is a relationship pregnant with dangers of excessive government direction . . . of churches." IV 40 In sum, we conclude that the fifty per cent rule of § 309.515, subd. 1(b), is not closely fitted to the furtherance of any compelling governmental interest asserted by appellants, and that the provision therefore violates the Establishment Clause. Indeed, we think that § 309.515, subd. 1(b)'s fifty per cent rule sets up precisely the sort of official denominational preference that the Framers of the First Amendment forbade. Accordingly, we hold that appellees cannot be compelled to register and report under the Act on the strength of that provision.30 The judgment of the Court of Appeals is 41 Affirmed. Justice STEVENS, concurring. 42 As the Court points out, ante, at 243, invalidation of the 50-percent rule would require the State to shoulder the considerable burden of demonstrating that the Unification Church is not a religious organization if the State persists in its attempt to require the Church to register and file financial statements. The burden is considerable because the record already establishes a prima facie case that the Church is a religious organization,1 and because a strict construction of a statutory exemption for religious organizations is disfavored and may give rise to constitutional questions.2 Justice REHNQUIST therefore is plainly wrong when he asserts in dissent that "invalidation of the fifty percent rule will have absolutely no effect on the Association's obligation to register and report as a charitable organization under the Act." Post, at 267, n. 3 (emphasis in original). The 50-percent rule has caused appellees a significant injury in fact because it has substituted a simple method of imposing registration and reporting requirements for a more burdensome and less certain method of accomplishing that result. I therefore agree with the Court's conclusion that the appellees have standing to challenge the 50-percent rule in this case. 43 The more difficult question for me is whether the Court's policy of avoiding the premature adjudication of constitutional issues3 counsels postponement of any decision on the validity of the 50-percent rule until after the Unification Church's status as a religious organization within the meaning of the Minnesota statute is finally resolved. My difficulty stems from the fact that the trial and resolution of the statutory issue will certainly generate additional constitutional questions.4 Therefore, it is clear that at least one decision of constitutional moment is inevitable.5 Under these circumstances, it seems to me that reaching the merits is consistent with our "policy of strict necessity in disposing of constitutional issues," Rescue Army v. Municipal Court, 331 U.S. 549, 568, 67 S.Ct. 1409, 1419, 91 L.Ed. 1666. Moreover, a resolution of the question that has been fully considered by the District Court and by the Court of Appeals and that has been fully briefed and argued in this Court is surely consistent with the orderly administration of justice. 44 I agree with the Court's resolution of the Establishment Clause issue. Accordingly, I join the Court's opinion. 45 Justice WHITE, with whom Justice REHNQUIST joins, dissenting. 46 I concur in the dissent of Justice REHNQUIST with respect to standing. I also dissent on the merits. 47 * It will be helpful first to indicate what occurred in the lower courts and what the Court now proposes to do. Based on two reports of a Magistrate, the District Court held unconstitutional the Minnesota limitation denying an exemption to religious organizations receiving less than 50 percent of their funding from their own members. The Magistrate recommended this action on the ground that the limitation could not pass muster under the second criterion set down in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), for identifying an unconstitutional establishment of religion—that the principal or primary effect of the statute is one that neither enhances nor inhibits religion. The 50-percent limitation failed this test because it subjected some churches to far more rigorous requirements than others, the effect being to "severely inhibit plaintiff's religious activities." App. to Juris. Statement A-63. This created a preference offensive to the Establishment Clause. Id., at A-33.1 The Magistrate relied on the inhibiting effect of the 50-percent rule without reference to whether or not it was the principal or primary effect of the limitation. In any event, the Magistrate recommended, and the District Court agreed, that the exemption from registration be extended to all religious organizations. 48 The Court of Appeals agreed with the District Court that the 50-percent rule violated the Establishment Clause. Its ruling, however, was on the ground that the limitation failed to satisfy the first Lemon criterion—that the statute have a secular rather than a religious purpose. The court conceded that the Act as a whole had the valid secular purpose of preventing fraudulent or deceptive practices in the solicitation of funds in the name of charity. The court also thought freeing certain organizations from regulation served a valid purpose because for those organizations public disclosure of funding would not significantly enhance the availability of information to contributors. Patriotic and fraternal societies that limit solicitation to voting members and certain charitable organizations that do not solicit in excess of $10,000 annually from the public fell into this category. But the court found no sound secular legislative purpose for the 50-percent limitation with respect to religious organizations because it "appears to be designed to shield favored sects, while continuing to burden other sects." 637 F.2d 562, 567. The challenged provision, the Court of Appeals said, "expressly separates two classes of religious organizations and makes the separation for no valid secular purpose that has been suggested by defendants. Inexplicable disparate treatment will not generally be attributed to accident; it seems much more likely that at some stage of the legislative process special solicitude for particular religious organizations affected the choice of statutory language. The resulting discrimination is constitutionally invidious." Id., at 568. The Court of Appeals went on to say that if it were necessary to apply the second part of the Lemon test, the provision would also fail to survive that examination because it advantaged some organizations and disadvantaged others. 49 In this Court, the case is given still another treatment. The Lemon v. Kurtzman tests are put aside because they are applicable only to laws affording uniform benefit to all religions, not to provisions that discriminate among religions. Rather, in cases of denominational preference, the Court says that "our precedents demand that we treat the law as suspect and that we apply strict scrutiny in adjudging its constitutionality." Ante, at 246. The Court then invalidates the challenged limitation. 50 It does so by first declaring that the 50-percent rule makes explicit and deliberate distinctions between different religious organizations. The State's submission that the 50-percent limitation is a law based on secular criteria which happens not to have an identical effect on all religious organizations is rejected. The Court then holds that the challenged rule is not closely fitted to serve any compelling state interest and rejects each of the reasons submitted by the State to demonstrate that the distinction between contributions solicited from members and from nonmembers is a sensible one. Among others, the Court rejects the proposition that membership control is an adequate safeguard against deceptive solicitations of the public. The ultimate conclusion is that the exemption provision violates the Establishment Clause. II 51 I have several difficulties with this disposition of the case. First, the Court employs a legal standard wholly different from that applied in the courts below. The premise for the Court's standard is that the challenged provision is a deliberate and explicit legislative preference for some religious denominations over others. But there was no such finding in the District Court. That court proceeded under the second Lemon test and then relied only on the disparate impact of the provision. There was no finding of a discriminatory or preferential legislative purpose. If this case is to be judged by a standard not employed by the courts below and if the new standard involves factual issues or even mixed questions of law and fact that have not been addressed by the District Court, the Court should not itself purport to make these factual determinations. It should remand to the District Court. 52 In this respect, it is no answer to say that the Court of Appeals appeared to find, although rather tentatively, that the state legislature had acted out of intentional denominational preferences. That court was no more entitled to supply the missing factual predicate for a different legal standard than is this Court. It is worth noting that none of the Court of Appeals' judges on the panel in this case is a resident of Minnesota. 53 Second, apparently realizing its lack of competence to judge the purposes of the Minnesota Legislature other than by the words it used, the Court disposes in a footnote of the State's claim that the 50-percent rule is a neutral, secular criterion that has disparate impact among religious organizations. The limitation, it is said, "is not simply a facially neutral statute" but one that makes "explicit and deliberate distinctions between different religious organizations." Ante, at 247, n. 23. The rule itself, however, names no churches or denominations that are entitled to or denied the exemption. It neither qualifies nor disqualifies a church based on the kind or variety of its religious belief. Some religions will qualify and some will not, but this depends on the source of their contributions, not on their brand of religion. 54 To say that the rule on its face represents an explicit and deliberate preference for some religious beliefs over others is not credible. The Court offers no support for this assertion other than to agree with the Court of Appeals that the limitation might burden the less well organized denominations. This conclusion, itself, is a product of assumption and speculation. It is contrary to what the State insists is readily evident from a list of those charitable organizations that have registered under the Act and of those that are exempt. It is claimed that both categories include not only well-established, but also not so well-established, organizations. The Court appears to concede that the Minnesota law at issue does not constitute an establishment of religion merely because it has a disparate impact. An intentional preference must be expressed. To find that intention on the face of the provision at issue here seems to me to be patently wrong. 55 Third, I cannot join the Court's easy rejection of the State's submission that a valid secular purpose justifies basing the exemption on the percentage of external funding. Like the Court of Appeals, the majority accepts the prevention of fraudulent solicitation as a valid, even compelling, secular interest. Hence, charities, including religious organizations, may be required to register if the State chooses to insist. But here the State has excused those classes of charities it thought had adequate substitute safeguards or for some other reason had reduced the risk which is being guarded against. Among those exempted are various patriotic and fraternal organizations that depend only on their members for contributions. The Court of Appeals did not question the validity of this exemption because of the built-in safeguards of membership funding. The Court of Appeals, however, would not extend the same reasoning to permit the State to exempt religious organizations receiving more than half of their contributions from their members while denying exemption to those who rely on the public to a greater extent. This Court, preferring its own judgment of the realities of fundraising by religious organizations to that of the state legislature, also rejects the State's submission that organizations depending on their members for more than half of their funds do not pose the same degree of danger as other religious organizations. In the course of doing so, the Court expressly disagrees with the notion that members in general can be relied upon to control their organizations.2 56 I do not share the Court's view of our omniscience. The State has the same interest in requiring registration by organizations soliciting most of their funds from the public as it would have in requiring any charitable organization to register, including a religious organization, if it wants to solicit funds. And if the State determines that its interest in preventing fraud does not extend to those who do not raise a majority of their funds from the public, its interest in imposing the requirement on others is not thereby reduced in the least. Furthermore, as the State suggests, the legislature thought it made good sense, and the courts, including this one, should not so readily disagree. 57 Fourth, and finally, the Court agrees with the Court of Appeals and the District Court that the exemption must be extended to all religious organizations. The Court of Appeals noted that the exemption provision, so construed, could be said to prefer religious organizations over nonreligious organizations and hence amount to an establishment of religion. Nevertheless, the Court of Appeals did not further address the question, and the Court says nothing of it now. Arguably, however, there is a more evident secular reason for exempting religious organizations who rely on their members to a great extent than there is to exempt all religious organizations, including those who raise all or nearly all of their funds from the public. 58 Without an adequate factual basis, the majority concludes that the provision in question deliberately prefers some religious denominations to others. Without an adequate factual basis, it rejects the justifications offered by the State. It reaches its conclusions by applying a legal standard different from that considered by either of the courts below. 59 I would reverse the judgment of the Court of Appeals. 60 Justice REHNQUIST, with whom THE CHIEF JUSTICE, Justice WHITE, and Justice O'CONNOR join, dissenting. 61 From the earliest days of the Republic it has been recognized that "[t]his Court is without power to give advisory opinions. Hayburn's Case, 2 Dall. 409 [1 L.Ed. 436 (1792) ]." Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 1389, 89 L.Ed. 1725 (1945). The logical corollary of this limitation has been the Court's "long . . . considered practice not to decide abstract, hypothetical or contingent questions, or to decide any constitutional question in advance of the necessity for its decision." Ibid. (citations omitted). Such fundamental principles notwithstanding, the Court today delivers what is at best an advisory constitutional pronouncement. The advisory character of the pronouncement is all but conceded by the Court itself, when it acknowledges in the closing footnote of its opinion that appellees must still "prove that the Unification Church is a religious organization within the meaning of the Act" before they can avail themselves of the Court's extension of the exemption contained in the Minnesota statute. Because I find the Court's standing analysis wholly unconvincing, I respectfully dissent. 62 * Part II of the Court's opinion concludes that appellees have standing to challenge § 309.515, subd. 1(b), of the Minnesota Charitable Solicitation Act (Act), because they have "plainly met" the case-or-controversy requirements of Art. III. Ante, at 239. This conclusion is wrong. Its error can best be demonstrated by first reviewing three factual aspects of the case which are either misstated or disregarded in the Court's opinion. 63 First, the Act applies to appellees not by virtue of the "fifty percent rule," but by virtue of § 309.52. That provision requires "charitable organizations" to register with the Securities and Real Estate Division of the Minnesota Department of Commerce. The Holy Spirit Association for the Unification of World Christianity (Association) constitutes such a "charitable organization" because it "engages in or purports to engage in solicitation" for a "religious . . . purpose." § 309.50, subds. 3 and 4 (Supp.1982). Only after an organization is brought within the coverage of the Act by § 309.52 does the question of exemption arise. The exemption provided by the fifty percent rule of § 309.515, subd. 1(b), one of several exemptions within the Act, applies only to "religious organizations." Thus, unless the Association is a "religious organization" within the meaning of the Act, the fifty percent rule has absolutely nothing to do with the Association's duty to register and report as a "charitable organization" soliciting funds in Minnesota. This more-than-semantic distinction apparently is misunderstood by the Court, for it repeatedly asserts that the Association is required to register "under the Act by virtue of the fifty percent rule in § 309.515, subd. 1(b)." Ante, at 1681 (emphasis added).1 64 Second, the State's effort to enforce the Act against the Association was based upon the Association's status as a "charitable organization" within the meaning of § 309.52. The State initially sought registration from the Association by letter: "From the nature of your solicitation it appears that [the Association] must complete a Charitable Organization Registration Statement and submit it to the Minnesota Department of Commerce." Exhibit A to Affidavit of Susan E. Fortney, Legal Assistant, Staff of Attorney General of Minnesota, Nov. 2, 1978 (Fortney Affidavit). When the Association failed to register within the allotted time, the State commenced "routine enforcement procedures," Fortney Affidavit, at 2, by filing a complaint in Minnesota state court. The complaint alleges that "charitable organizations" are required by § 309.52 to register with the State, that the Association comes within the § 309.50, subd. 4, definition of "charitable organizations," and that "[t]he [Association] has failed to file a registration statement and financial information with the Minnesota Department of Commerce, resulting in a violation of Minn.Stat. § 309.52." Exhibit F to Fortney Affidavit, at 3.2 This complaint, which never once mentions the fifty percent rule of § 309.515, subd. 1(b), nor characterizes the Association as a "religious organization," is still pending in Minnesota District Court, having been stayed by stipulation of the parties to this lawsuit. Because today's decision does nothing to impair the statutory basis of the complaint, or the State's reason for filing it, the State may proceed with its enforcement action before the ink on this Court's judgment is dry.3 65 Third, appellees have never proved, and the lower courts have never found, that the Association is a "religious organization" for purposes of the fifty percent rule. The District Court expressly declined to make such a finding—"This court is not presently in a position to rule whether the [Association] is, in fact, a religious organization within the Act," App. to Juris. Statement A-47—and the Court of Appeals was content to decide the case despite the presence of this " 'unresolved factual dispute concerning the true character of [appellees'] organization,' " 637 F.2d 562, 565 (CA8 1981) (quoting Village of Schaumburg v. Citizens for Better Environment, 444 U.S. 620, 633, 100 S.Ct. 826, 834, 63 L.Ed.2d 73 (1980)). The absence of such a finding is significant, for it is by no means clear that the Association would constitute a "religious organization" for purposes of the § 309.515, subd. 1(b), exemption. The appellees' assertion in the District Court that their actions were religious was "directly contradict[ed]" by a "heavy testimonial barrage against the [Association's] claim that it is a religion." App. to Juris. Statement A-46.4 II 66 The Court's opinion recognizes that the proper standing of appellees in this case is a constitutional prerequisite to the exercise of our Art. III power. See ante, at 1680. To invoke that power, appellees must satisfy Art. III's case-or-controversy requirement by showing that they have a personal stake in the outcome of the controversy, consisting of a distinct and palpable injury. Ibid. See also Glad- stone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607-1608, 60 L.Ed.2d 66 (1979); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978). I do not disagree with the Court's conclusion that the threatened application of the Act to appellees constitutes injury in fact. 67 But injury in fact is not the only requirement of Art. III. The appellees must also show that their injury "fairly can be traced to the challenged action of the defendant." Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41, 96 S.Ct. 1917, 1925-1926, 48 L.Ed.2d 450 (1976). The Court purports to find such causation by use of the following sophism: "there is a fairly traceable causal connection between the claimed injury and the challenged conduct—here, between the claimed disabling and the threatened application of § 309.515, subd. 1(b), and its fifty per cent rule." Ante, at 241. 68 As was demonstrated above, the statute and the State require the Association to register because it is a "charitable organization" under § 309.52, not because of the fifty percent requirement contained in the exemption for religious organizations. Indeed, at this point in the litigation the fifty percent rule is entirely inapplicable to appellees because they have not shown that the Association is a "religious organization." Therefore, any injury to appellees resulting from the registration and reporting requirements is caused by § 309.52, not, as the Court concludes, by "the . . . threatened application of § 309.515, subd. 1(b)'s fifty per cent rule." Ante, at 242. Having failed to establish that the fifty percent rule is causally connected to their injury, appellees at this point lack standing to challenge it. 69 The error of the Court's analysis is even more clearly demonstrated by a closely related and equally essential requirement of Art. III. In addition to demonstrating an injury which is caused by the challenged provision, appellees must show "that the exercise of the Court's remedial powers would redress the claimed injuries." Duke Power Co. v. Carolina Environmental Study Group, supra, 438 U.S., at 74, 98 S.Ct., at 2631. The importance of redressability, an aspect of standing which has been recognized repeatedly by this Court,5 is of constitutional dimension: 70 "[W]hen a plaintiff's standing is brought into issue the relevant inquiry is whether, assuming justiciability of the claim, the plaintiff has shown an injury to himself that is likely to be redressed by a favorable decision. Absent such a showing, exercise of its power by a federal court would be gratuitous and thus inconsistent with the Art. III limitation." Simon v. Eastern Kentucky Welfare Rights Org., supra, at 38, 96 S.Ct., at 1924. 71 Appellees have failed to show that a favorable decision of this Court will redress the injuries of which they complain. By affirming the decision of the Court of Appeals, the Court today extends the exemption of § 309.515, subd. 1(b), to all "religious organizations" soliciting funds in Minnesota. See 637 F.2d, at 569-570. But because appellees have not shown that the Association is a "religious organization" under that provision, they have not shown that they will be entitled to this newly expanded exemption.6 This uncertainty is expressly recognized by the Court: "We agree with the Court of Appeals that appellees and others claiming the benefits of the religious-organization exemption should not automatically enjoy those benefits. Rather, in order to receive them, appellees may be required by the State to prove that the Unification Church is a religious organization within the meaning of the Act." Ante, at 255, n. 30 (citation omitted).7 72 If the appellees fail in this proof—a distinct possibility given the State's "heavy testimonial barrage against [the Association's] claim that it is a religion," App. to Juris. Statement A-46—this Court will have rendered a purely advisory opinion. In so doing, it will have struck down a state statute at the behest of a party without standing, contrary to the undeviating teaching of the cases previously cited. Those cases, I believe, require remand for a determination of whether the Association is a "religious organization" as that term is used in the Minnesota statute. III 73 There can be no doubt about the impropriety of the Court's action this day. "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 Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101 (1944). Nowhere does this doctrine have more force than in cases such as this one, where the defect is a possible lack of Art. III jurisdiction due to want of standing on the part of the party which seeks the adjudication. 74 "Considerations of propriety, as well as long-established practice, demand that we refrain from passing upon the constitutionality of [legislative Acts] unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it." Blair v. United States, 250 U.S. 273, 279, 39 S.Ct. 468, 470, 63 L.Ed. 979 (1919), quoted in Ashwander v. TVA, 297 U.S. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). 75 The existence of injury in fact does not alone suffice to establish such an interest. "The necessity that the plaintiff who seeks to invoke judicial power stand to profit in some personal interest remains an Art. III requirement. A federal court cannot ignore this requirement without overstepping its assigned role in our system of adjudicating only actual cases and controversies." Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S., at 39, 96 S.Ct., at 1925. IV 76 In sum, the Court errs when it finds that appellees have standing to challenge the constitutionality of § 309.515, subd. 1(b). Although injured to be sure, appellees have not demonstrated that their injury was caused by the fifty percent rule or will be redressed by its invalidation. This is not to say that appellees can never prove causation or redressability, only that they have not done so at this point. The case should be remanded to permit such proof. Until such time as the requirements of Art. III clearly have been satisfied, this Court should refrain from rendering significant constitutional decisions. 1 The Clause provides that "Congress shall make no law respecting an establishment of religion. . . ." It is applied to the States by the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). 2 Section 309.51, subd. 1(a) (1969), repealed in 1973, provided in pertinent part: "[S]ections 309.50 to 309.61 shall not apply to any group or association serving a bona fide religious purpose when the solicitation is connected with such a religious purpose, nor shall such sections apply when the solicitation for such a purpose is conducted for the benefit of such a group or association. . . ." Between 1973 and 1978, § 309.515, subd. 1, provided in pertinent part: "[S]ections 309.52 and 309.53 shall not apply to . . .. * * * * * "(b) Any group or association serving a bona fide religious purpose when the solicitation is connected with such a religious purpose, nor shall such sections apply when the solicitation for such a purpose is conducted for the benefit of such a group or association by any other person with the consent of such group or association. . . ." 3 The amended exemption provision read in relevant part: "309.515 Exemptions "Subdivision 1. . . . [S]ections 309.52 and 309.53 shall not apply to . . .: * * * * * "(b) A religious society or organization which received more than half of the contributions it received in the accounting year last ended (1) from persons who are members of the organization; or (2) from a parent organization or affiliated organization; or (3) from a combination of the sources listed in clauses (1) and (2). A religious society or organization which solicits from its religious affiliates who are qualified under this subdivision and who are represented in a body or convention is exempt from the requirements of sections 309.52 and 309.53. The term 'member' shall not include those persons who are granted a membership upon making a contribution as a result of a solicitation." 4 This notice "discussed the application of the amendments expanding the scope of the charities law to religious organizations, explained the registration procedure, enclosed the proper forms, and sought [appellees'] compliance with the law." Affidavit of Susan E. Fortney, Legal Assistant, Staff of Attorney General of Minnesota, Nov. 2, 1978. The notice also threatened legal action against the Church if it failed to comply. The notice read in pertinent part as follows: "During the recent Minnesota legislative session, a bill was passed which changes the registration and reporting requirements for charitable organizations which solicit funds in Minnesota. One significant change was in the religious exemption which previously exempted from registering and reporting any organization serving a bona fide religious purpose. "Minn.Stat. § 309.515 as found in chapter 601 of the 1978 Session Laws provides that the religious exemption now applies to religious groups or societies which receive more than half of its contributions in the accounting year last ended from persons who are members of the organization or from a parent organization or affiliated organization. In other terms, a religious organization which solicits more than half its funds from non-members must register and report according to the provisions of the Minnesota Charitable Solicitation Law. "From the nature of your solicitation it appears that Holy Spirit Association for the Unification of World Christianity must complete a Charitable Organization Registration Statement and submit it to the Minnesota Department of Commerce. The Charitable Organization Registration Statement must be accompanied with a financial statement for the fiscal year last ended. "I am enclosing the proper forms and an information sheet for your use. Please be advised that the proper forms must be on file with the Department of Commerce by September 30, 1978, or we will consider taking legal action to ensure your compliance." Affidavit of Susan E. Fortney, supra, Exhibit A. 5 Appellees' complaint stated in pertinent part that the "application of the statutes to itinerant missionaries whose Churches are not established in Minnesota, but not to Churches with substantial local membership, constitutes an unequal application of the law." App. A-5. The focus of this allegation was plainly the fifty per cent rule of § 309.515, subd. 1(b). 6 Appellants responded to appellees' motion for a preliminary injunction with a motion to dismiss. App. to Juris. Statement A-38. They disputed appellees' claims on the merits, and also challenged appellees' standing to raise their Establishment Clause claims, arguing that the Unification Church was not a religion within the meaning of that Clause. Id., at A-44—A-45. The Magistrate made findings of fact that the Unification Church was a California nonprofit religious corporation, and that it had been granted tax exempt religious organization status by the United States Internal Revenue Service and the State of Minnesota. Id., at A-37. These findings were later incorporated into the Magistrate's report and recommendation on the motion for summary judgment. Id., at A-21. He declined, however, to rule on the issue of the religious status of the Church. Id., at A-47. 7 Appellants asserted that the central issue in the case was "whether [appellees'] fund raising practices constitute expression of religious beliefs within the protection of the First Amendment." Defendants' Objections to Report and Recommendations of Magistrate Robert Renner in No. Civ. 4-78-453 (DC Minn.), p. 2. Appellants argued that appellees' fundraising activities were not a form of religious expression; they provided evidentiary support for this argument in the form of numerous affidavits of persons claiming to be former members of the Unification Church, who asserted that they had been encouraged to engage in fundraising practices that were both fraudulent and unrelated to any religious purpose. 8 That second test requires that the "principal or primary effect" of the challenged statute "be one that neither advances nor inhibits religion." 403 U.S., at 612, 91 S.Ct., at 2111. The Magistrate found that § 309.515, subd. 1(b)'s fifty per cent rule violated that requirement "in that it inhibit[ed] religious organizations which receive[d] more than half of their contributions from non-members, and thereby enhance[d] religious organizations which receive[d] less than half from non-members." App. to Juris. Statement A-24. 9 The District Court's judgment provided: "1. The Minnesota Charitable Solicitation Act, Minn.Stat. § 309.50 et seq., is unconstitutional as applied to religious organizations and members thereof; "2. The Act is constitutional as applied to non-religious organizations and members thereof; "3. Sections 309.534, subd. 1(a), and 309.581 of the Act is [sic] unconstitutional as applied to persons claiming to be religious organizations or members thereof; "4. The constitutionality of the application of section 309.532 [relating to denial, suspension, and revocation of licenses issued under the Act] to [appellees] and others whose claims to a religious exemption are challenged by the State is a nonjusticiable issue; "5. [Appellant Larson] is permanently enjoined from enforcing the Act as to any and all religious organizations; "6. [Appellant Larson] is permanently enjoined from utilizing sections 309.534, subd. 1(a), and 309.581 to enforce the Act as against [appellees] and other persons claiming to be religious organizations or members thereof." Id., at A-18—A-19. 10 The Court of Appeals supported this conclusion on grounds broader than those of the District Court. Whereas the District Court had found § 309.515, subd. 1(b)'s fifty per cent rule to violate only the second of the Lemon tests, the Court of Appeals found the rule to violate the first of those tests as well. 637 F.2d, at 567-568. The first Lemon test provides that "the statute must have a secular legislative purpose." 403 U.S., at 612, 91 S.Ct., at 2111. 11 The Court of Appeals summarized its holdings as follows: "[W]e agree with the district court's holding that [appellees] have standing to challenge the classification made in the exemption section of the Act, as it pertains to religious organizations; we agree with the court's invalidation of the classification made in that section; we agree that the exemption section should apply to all religious organizations, subject to possible legislative revision; we disagree with the conclusion that no part of the Act may be applied to religious organizations, but leave open questions of construction and validity for further development, including the application of the Act to charitable organizations; and we disagree with the conclusion that [appellees] and others claiming the religious exemption should automatically enjoy such exemption, but leave open the question of [appellees'] status for further development." 637 F.2d, at 571. 12 Justice REHNQUIST's dissent suggests, post, at 265-266, and n. 2, that our interpretation of the State's grounds for application of the Act to appellees is erroneous. But the letter quoted in n. 4, supra, speaks for itself, and we reject the novel suggestion that the contents of such a notification of official enforcement action may be ignored by this Court depending upon the state official who signs the notice. 13 The Department's attempt to apply the Act to appellees by means of § 309.515, subd. 1(b), was consistent with the expectation, evident in the legislative history of § 309.515, subd. 1(b), that that provision's fifty per cent rule would be applied to the Unification Church in order to deny it continued exemption from the requirements of the Act. See infra, at 253-255. Justice REHNQUIST's dissent suggests, post, at 264, that "the Act applies to appellees not by virtue of the 'fifty-per cent rule,' but by virtue of § 309.52." This suggestion misses the point. Section 309.52 announces the Act's general registration requirement for charitable organizations. In 1978, the State sought to compel the Church to register and report under the Act, relying upon § 309.515, subd. 1(b). The State might have chosen to rely upon some other provision, e.g., § 309.515, subd. 1(a)(1), which exempts charitable organizations receiving less than $10,000 annually from the public. Instead the State chose to rely upon § 309.515, subd. 1(b). Thus if the Act applies to appellees, it of course does so by the combined effect of § 309.52 and § 309.515, subd. 1(b). In this attenuated sense the Act does apply to appellees "by virtue of § 309.52." But nevertheless the State sought to impose the requirements of the Act upon appellees by only one means out of the several available to it, and that means was § 309.515, subd. 1(b). 14 See supra, at 230-231; n. 29, infra. 15 In reaching the conclusion that appellees' claims would not be redressed by an affirmance of the decision below, Justice REHNQUIST's dissent reveals a draconic interpretation of the redressability requirement that is justified by neither precedent nor principle. The dissent appears to assume that in order to establish redressability, appellees must show that they are certain, ultimately, to receive a religious-organization exemption from the registration and reporting requirements of the Act—in other words, that there is no other means by which the State can compel appellees to register and report under the Act. We decline to impose that burden upon litigants. As this Court has recognized, "the relevant inquiry is whether . . . the plaintiff has shown an injury to himself that is likely to be redressed by a favorable decision." Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976) (emphasis added); accord, Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 262, 97 S.Ct. 555, 561-562, 50 L.Ed.2d 450 (1977). In other words, a plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury. Cf. University of California Regents v. Bakke, 438 U.S. 265, 280-281, n. 14, 98 S.Ct. 2733, 2742-2743, n. 14, 57 L.Ed.2d 750 (1978) (opinion of POWELL, J.) 16 Appellants contended below that appellees were not entitled to raise their Establishment Clause claims until they had demonstrated that their activities were within the protection of that Clause. The courts below applied the overbreadth doctrine to reject this contention, and appellants argue that those courts erred in doing so. We have no need to address these matters. Appellees have made a sufficiently strong demonstration that the Church is a religion to overcome any prudential standing obstacles to consideration of their Establishment Clause claim. 17 See S. Cobb, The Rise of Religious Liberty in America: A History 67-453 (1970); L. Pfeffer, Church, State, and Freedom 71-90 (rev. ed. 1967). 18 B. Bailyn, The Ideological Origins of the American Revolution 265 (1967). 19 For example, according to John Adams, colonial Massachusetts possessed "the most mild and equitable establishment of religion that was known in the world, if indeed [it] could be called an establishment." Quoted in B. Bailyn, at 248. But Baptists in Massachusetts chafed under any form of establishment, and Revolutionary pamphleteer John Allen expressed their views to the members of the General Court of Massachusetts in his declamation, The American Alarm, or the Bostonian Plea, for the Rights and Liberties of the People: "You tell your [colonial] governor that the Parliament of England have no right to tax the Americans . . . because they are not the representatives of America; and will you dare to tax the Baptists for a religion they deny? Are you gentlemen their representatives before GOD, to answer for their souls and consciences any more than the representatives of England are the representatives of America? . . . [I]f it be just in the General Court to take away my sacred and spiritual rights and liberties of conscience and my property with it, then it is surely right and just in the British Parliament to take away by power and force my civil rights and property without my consent; this reasoning, gentlemen, I think is plain." Quoted id., at 267-268. 20 See Pfeffer, supra, at 104-119. 21 Id., at 125-127. 22 The Federalist No. 51, p. 326 (H. Lodge ed. 1908). 23 Appellants urge that § 309.515, subd. 1(b), does not grant such preferences, but is merely "a law based upon secular criteria which may not identically affect all religious organizations." Brief for Appellants 20. They accordingly cite McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), and cases following Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), for the proposition that a statute's "disparate impact among religious organizations is constitutionally permissible when such distinctions result from application of secular criteria." Brief for Appellants 26. We reject the argument. Section 309.515, subd. 1(b), is not simply a facially neutral statute, the provisions of which happen to have a "disparate impact" upon different religious organizations. On the contrary, § 309.515, subd. 1(b), makes explicit and deliberate distinctions between different religious organizations. We agree with the Court of Appeals' observation that the provision effectively distinguishes between "well-established churches" that have "achieved strong but not total financial support from their members," on the one hand, and "churches which are new and lacking in a constituency, or which, as a matter of policy, may favor public solicitation over general reliance on financial support from members," on the other hand. 637 F.2d, at 566. This fundamental difference between § 309.515, subd. 1(b), and the statutes involved in the "disparate impact" cases cited by appellants renders those cases wholly inapplicable here. Appellants also argue that reversal of the Court of Appeals is required by Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971). In that case we rejected an Establishment Clause attack upon § 6(j) of the Military Selective Service Act of 1967, 50 U.S.C.App. § 456(j) (1964 ed., Supp.V), which afforded "conscientious objector" status to any person who, "by reason of religious training and belief," was "conscientiously opposed to participation in war in any form." 401 U.S., at 441, 91 S.Ct., at 832. Gillette is readily distinguishable from the present case. Section 6(j) "focused on individual conscientious belief, not on sectarian affiliation." Id., at 454, 91 S.Ct., at 838. Under § 6(j), conscientious objector status was available on an equal basis to both the Quaker and the Roman Catholic, despite the distinction drawn by the latter's church between "just" and "unjust" wars, see St. Thomas Aquinas, Summa Theologica, Second Part, Part II, Question 40, Arts. 1, 4; St. Augustine, City of God, Book XIX, Ch. 7. As we noted in Gillette, the "critical weakness of petitioners' establishment claim" arose "from the fact that § 6(j), on its face, simply [did] not discriminate on the basis of religious affiliation." 401 U.S., at 450, 91 S.Ct., at 836. In contrast, the statute challenged in the case before us focuses precisely and solely upon religious organizations. 24 In support of their assumption of such supervision, appellants cite Minn.Stat. § 317.28(2) (1969), which allows any member of a domestic nonprofit corporation to "inspect all books and records for any proper purpose at any reasonable time." But this provision applies only to domestic nonprofit corporations; appellants have made no showing that religious organizations incorporated in other States operate under an analogous constraint. Further, in Minnesota even domestic religious organizations need not be organized as nonprofit corporations—they may also choose to organize under Minn.Stat., ch. 315, governing "Religious Associations," which has no provision analogous to § 317.28(2). Moreover, even as to the religious organizations to which it applies, § 317.28(2) obviously does not ensure that any member of a religious organization will actually take advantage of the supervision permitted by that provision. And finally, since § 317.28(2) applies irrespective of the percentage of membership contributions, it cannot provide any justification at all for the fifty per cent rule in § 309.515, subd. 1(b). In sum, appellants' assumption of membership supervision is purely conjectural. 25 An early draft of that provision allowed an exemption from the Act only for a religious organization that solicited "substantially more than half of the contributions it received . . . from persons who have a right to vote as a member of the organization." Minn. H. 1246, 1977-1978 Sess., § 4 (read Apr. 6, 1977). The italicized language was later amended to read, "who are members." Attachment to Minutes of Meeting of Commerce and Economic Development Committee, Jan. 24, 1978. Since § 309.515, subd. 1(b), as enacted deliberately omits membership voting rights as a requirement for a religious organization's exemption, it clearly permits religious organizations that are not subject to control by their membership to be exempted from the Act. Of course, even if § 309.515, subd. 1(b), exempted only those religious organizations with membership voting rights, the provision obviously would not ensure that the membership actually exercised its voting rights so as to control the organization in any effective manner. 26 This thesis is evident in the Act's treatment of nonreligious organizations that might solicit within the State: With exceptions not relevant here, such organizations are exempted from the registration and reporting requirements of the Act only if their solicitations of the public are de minimis, §§ 309.515, subds. 1(a)(1), (f), or if they are subject to independent state regulation, § 309.515, subd. 1(c). 27 We do not suggest, however, that an exemption provision based upon the absolute amount of nonmember contributions would necessarily satisfy the standard set by the Establishment Clause for laws granting denominational preferences. 28 Allen involved a state law requiring local public school authorities to lend textbooks free of charge to all students in grades seven through twelve, including those in parochial schools. 392 U.S., at 238, 88 S.Ct., at 1924. Walz examined a state law granting property tax exemptions to religious organizations for religious properties used solely for religious worship. 397 U.S., at 666, 90 S.Ct., at 1410. And in Lemon itself, the challenged state laws provided aid to church-related elementary and secondary schools. 403 U.S., at 606, 91 S.Ct., at 2108. 29 The registration statement required by § 309.52 calls for the provision of a substantial amount of information, much of which penetrates deeply into the internal affairs of the registering organization. The organization must disclose the "[g]eneral purposes for which contributions . . . will be used," the "[b]oard, group or individual having final discretion as to the distribution and use of contributions received," and "[s]uch other information as the department may . . . require"—and these are only three of sixteen enumerated items of information required by the registration statement. The annual report required by § 309.53 is even more burdensome and intrusive. It must disclose "[t]otal receipts and total income from all sources," the cost of "management," "fund raising," and "public education," and a list of "[f]unds or properties transferred out of state, with explanation as to recipient and purpose," to name only a few. Further, a religious organization that must register under the Act may have its registration withdrawn at any time if the Department or the Attorney General concludes that the religious organization is spending "an unreasonable amount" for management, general, and fund-raising costs. § 309.555. 30 In so holding, we by no means suggest that the State of Minnesota must in all events allow appellees to remain exempt from the provisions of the Charitable Solicitation Act. We agree with the Court of Appeals that appellees and others claiming the benefits of the religious-organization exemption should not automatically enjoy those benefits. 637 F.2d, at 571. Rather, in order to receive them, appellees may be required by the State to prove that the Unification Church is a religious organization within the meaning of the Act. Nothing in our opinion suggests that appellants could not attempt to compel the Unification Church to register under the Act as a charitable organization not entitled to the religious-organization exemption, and put the Church to the proof of its bona fides as a religious organization. Further, nothing in our opinion disables the State from denying exemption from the Act, or from refusing registration and licensing under the Act, to persons or organizations proved to have engaged in frauds upon the public. See § 309.515, subd. 3. We simply hold that because the fifty per cent rule of § 309.515, subd. 1(b), violates the Establishment Clause, appellees cannot be compelled to register and report under the Act on the strength of that provision. 1 The Church has been incorporated in California as a religious corporation and has been treated as a religious organization for tax purposes by the Federal Government and by the State of Minnesota. App. to Juris. Statement A-37. The Church was treated as a religious organization by the State prior to the enactment of the 50-percent rule in 1978. According to the Magistrate, the appellees "have submitted substantial, although not uncontroverted, evidence of the religious nature of the Unification Church and of their solicitations." Id., at A-23; see id., at A-47. 2 See Washington Ethical Society v. District of Columbia, 101 U.S.App.D.C. 371, 373, 249 F.2d 127, 129 (1957) (Burger, J.) ("To construe exemptions so strictly that unorthodox or minority forms of worship would be denied the exemption benefits granted to those conforming to the majority beliefs might well raise constitutional issues"). 3 See generally Rescue Army v. Municipal Court, 331 U.S. 549, 568-574, 67 S.Ct. 1409, 1419-1422, 91 L.Ed. 1666; Ashwander v. TVA, 297 U.S. 288, 346-348, 56 S.Ct. 466, 482-483, 80 L.Ed. 688 (BRANDEIS, J., concurring). I have no reservations about the wisdom or importance of this policy. See, e.g., California ex rel. Cooper v. Mitchell Brothers' Santa Ana Theater, 454 U.S. 90, 94, 102 S.Ct. 172, 174, 70 L.Ed.2d 262 (STEVENS, J., dissenting); Minnick v. California Dept. of Corrections, 452 U.S. 105, 102 S.Ct. 2211, 68 L.Ed.2d 706; University of California Regents v. Bakke, 438 U.S. 265, 411-412, 98 S.Ct. 2733, 2809-2810, 57 L.Ed.2d 750 (opinion of STEVENS, J.). 4 Even if we were to conclude that the constitutional standards for resolving the statutory issue were perfectly clear, there is nevertheless an important interest in avoiding litigation of issues relating to church doctrine. See United States v. Lee, 455 U.S. 252, 263, n. 2, 102 S.Ct. 1051, 1058, n. 2, 71 L.Ed.2d 127 (STEVENS, J., concurring in judgment). Cf. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533. 5 Even if the District Court should find that the Church is not a religious organization, I believe that it is fair to assume that the Church would challenge that conclusion in this Court. I recognize that it is also possible that ultimately we may be required to confront both constitutional problems, but that possibility is present whether we dismiss the appeal pending resolution of the Church's status or we decide now the validity of the 50-percent rule. 1 The Magistrate also recommended, and the District Court agreed, that all of the registration provisions applicable to religious organizations be enjoined as prior restraints offensive to the First Amendment. App. to Juris. Statement A-33. The Court of Appeals did not agree in this respect. 2 This observation would appear to call into question the exemption of charitable organizations raising all of their funds from their members: since members cannot be relied upon to control their organization's fundraising activities so as to prevent fraud, why should those organizations be entitled to an exemption when others are not? 1 The examples of this error by the Court are numerous. The Court speaks of the Act "as applied to [appellees] through § 309.515, subd. 1(b)' § fifty per cent rule," ante, at 233 (emphasis added), "the application of the Act to the Church through § 309.515, subd. 1(b)'s fifty per cent rule," ante, at 234 (emphasis added), the State's attempt to enforce the Act against the appellees "in express and exclusive reliance upon the newly enacted fifty per cent rule of § 309.515, subd. 1(b)," ante, at 239, and the State's "attemp[t] to use § 309.515, subd. 1(b)'s fifty per cent rule in order to compel the Unification Church to register and report under the Act," ante, at 241. In addition, the Court holds that because the fifty percent rule is unconstitutional, the "appellees cannot be compelled to register and report under the Act on the strength of that provision," ante, at 255 (emphasis added). 2 The Court errs when it concludes that the basis for the State's enforcement action was the fifty percent rule of § 309.515, subd. 1(b). See ante, at 232, 241. The Court bases this conclusion on a letter to the Association from Legal Assistant Fortney which referred to the fifty percent rule while informing the Association of its obligation to register under the Act. See ante, at 232-233, n. 4. The Court apparently concludes from this letter that it was the fifty percent rule which motivated the State to seek registration from the Association. Certainly the imprecise implications of a letter from a Legal Assistant in the Attorney General's Office do not establish the motive behind the State's enforcement action. More importantly, the reason for the State's action was expressly alleged in the enforcement complaint: the Association is a charitable organization soliciting funds in Minnesota. See Exhibit F to Fortney Affidavit. Even if the State had been motivated by the narrowing of the religious organization exemption, however, that would not alter the legal basis for enforcement of the statute against appellees or the analysis of appellees' standing before this Court. 3 It is not surprising that the Court's opinion never once mentions this enforcement complaint. That the complaint is pending in the Minnesota District Court, and that it relies entirely upon the Association's status as a "charitable organization" within the meaning of § 309.52, altogether refute the Court's assertion that the fifty percent "rule was the sole basis for the State's attempt to compel registration," and the consequent conclusion that invalidation of the rule will mean that "the Church cannot be required to register and report under the Act." Ante, at 242. As has already been demonstrated, invalidation of the fifty percent rule will have absolutely no effect on the Association's obligation to register and report as a charitable organization under the Act. See supra, at 265-266. Indeed, the Court's decision today will not even require the State to amend its complaint before proceeding with its enforcement action. 4 Apparently forgetting that our role does not include finding facts, the Court finds itself "compel[led]" to conclude that "the Church is indeed a religious organization within the meaning of the Act." Ante, at 241. The Court's compulsion to disregard its purely appellate function is caused not by evidence adduced in the District Court, but by the faulty premise which underlies the Court's entire standing analysis: that "appellants chose to apply § 309.515, subd. 1(b), and its fifty per cent rule as the sole statutory authority requiring the Church to register under the Act." Ibid. The utter error of that premise has already been demonstrated. See supra, at 264-265. But even if one accepts the premise that the State acted because it considered the Association to be a "religious organization" for purposes of the fifty percent rule, that premise cannot properly lead to the conclusion that the Association is in fact such an organization. Factual determinations of that sort are to be made by state courts construing the Minnesota statute, not by attorneys in the Minnesota Attorney General's office. And if the Court is saying that the Attorney General has "admitted" by its enforcement action that the Association is a "religious organization" within the meaning of the Act, it has ventured into a realm of state evidentiary law in which it has no competence and no business. It is worth noting that even the Court of Appeals did not take such liberties with the record. It held that the " 'bare assertion . . . without the production of any evidence . . . is simply not sufficient to sustain [an] assertion that [the Unification Church] is a religious organization.' " 637 F.2d 562, 570 (CA8 1981) (quoting United States v. Berg, 636 F.2d 203, 205 (CA8 1980)). Even more questionable than this finding of fact is the judicial wizardry by which the Court shifts the state-created burden of proof. The Court concludes, without citation to supporting authority, that "a declaration that § 309.515, subd. 1(b)'s fifty percent rule is unconstitutional would put the State to the task of demonstrating that the Unification Church is not a religious organization within the meaning of the Act." Ante, at 1682 (emphasis added). This conclusion directly conflicts with the Minnesota statute, which requires registration and reporting under the Act if the State demonstrates that an organization is "charitable" within the meaning of § 309.52. See supra, at 1694. It then becomes incumbent on the organization to show that it qualifies for one of the Act's several exemptions—in this case to show that it is a "religious organization" within the meaning of § 309.515, subd. 1(b). The Court cannot change this state regulatory scheme by judicial fiat, and does so only in a transparent attempt to manufacture redressability where none exists. See infra, at 1696-1697. 5 See Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1981); Watt v. Energy Action Educational Foundation, 454 U.S. 151, 161, 102 S.Ct. 205, 212, 70 L.Ed.2d 309 (1981); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S., at 74, 75, n. 20, 98 S.Ct., at 2631, n. 20; Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 262, 97 S.Ct. 555, 561-562, 50 L.Ed.2d 450 (1977); Warth v. Seldin, 422 U.S. 490, 504, 507-508, 95 S.Ct. 2197, 2209-2210, 45 L.Ed.2d 343 (1975); Linda R. S. v. Richard D., 410 U.S. 614, 618, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973). 6 The Court attempts to finesse this fact by stating: "[A] plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury." Ante, at 244, n. 15 (emphasis in original). True though this statement may be, appellees have failed to demonstrate that a favorable decision in this Court will relieve any injury. The Court's decision does not alter the statutory requirement that the Association register under the Act, and expands an exemption from which appellees can benefit only when they prove that the Association is a "religious organization" within the meaning of the Act. 7 At another point in its opinion, the Court acknowledges: "Of course, the Church cannot be assured of a continued religious-organization exemption even in the absence of the fifty per cent rule. . . . But that fact by no means detracts from the palpability of [appellees' injury.]" Ante, at 242 (citation omitted). I agree that the uncertainty as to whether this decision will benefit appellees does not detract from the "palpability" of their injury. As shown in the text, however, it detracts totally from their ability to demonstrate the essential Art. III requirements of causation and redressability.

23

456 U.S. 336 102 S.Ct. 1815 72 L.Ed.2d 114 SOUTHERN PACIFIC TRANSPORTATION CO., Petitioner,v.COMMERCIAL METALS CO. No. 81-622. Argued March 31, 1982. Decided April 27, 1982. Syllabus Respondent, as consignor, shipped goods by rail to a third party under uniform straight bills of lading prescribed by the Interstate Commerce Commission (ICC). Each bill provided that the consignor was liable for freight charges unless it signed a statement in the bill that "[t]he carrier shall not make delivery of this shipment without payment of freight and all other lawful charges." Respondent failed to execute this "nonrecourse" clause in the bills of lading. Petitioner, a common carrier by rail, delivered the first shipment to the consignee without collecting the freight charges in advance and without investigating the consignee's credit standing. Petitioner delivered the other shipments only after receiving checks from the consignee, but the checks were dishonored by the consignee's bank for insufficient funds. After unsuccessfully attempting to collect the unpaid freight charges from the consignee, petitioner requested that respondent pay the charges and, when payment was not made, filed suit against respondent in Federal District Court. The court ruled that although petitioner had established a prima facie case for the recovery of the freight charges, respondent had established a valid equitable defense by showing that petitioner had failed to comply with the ICC's credit regulations. These regulations, promulgated pursuant to § 3(2) of the Interstate Commerce Act, did not allow for delivery of freight on credit for more than five days. The Court of Appeals affirmed. Held : Petitioner's violation of the credit regulations does not bar its collection of lawful freight charges from respondent. Pp. 342-352. (a) Petitioner established a prima facie case of respondent's liability for the freight charges by proving that respondent failed to sign the nonrecourse clause in the bills of lading. The bill of lading is the basic transportation contract between the shipper-consignor and the carrier, and, unless the bill provides to the contrary, the consignor remains primarily liable for the freight charges. Thus, by failing to execute the nonrecourse provision, respondent continued to be primarily liable. Pp. 342-344. (b) Petitioner's violation of the credit regulations did not provide respondent with an equitable affirmative defense to petitioner's prima facie case. Neither § 3(2) of the Act nor the regulations themselves intimate that a carrier's violation of the credit rules automatically precludes it from collecting the lawful freight charge. Nor does either contain any words of affirmative defense to a freight charge action. The history of the regulations further indicates that this silence was not inadvertent—the intent of the rules was to protect carriers, not to penalize them. And public policy concerns disfavor judicial implication of affirmative defenses based on carrier violations of the credit regulations. The ICC has ample authority to police the credit practices of carriers, and thereby to deter improper practices, without the judicially created remedy of forfeiture of freight charges. Pp. 344-352. 641 F.2d 235, reversed. James H. Pipkin, Jr., Washington, D. C., for petitioner. David M. Sudbury, Dallas, Tex., for respondent. Justice BLACKMUN delivered the opinion of the Court. 1 This case presents the question whether a common carrier's violation of credit regulations issued by the Interstate Commerce Commission (ICC) bars the carrier's collection of a lawful freight charge from a shipper-consignor who, under the terms of the shipment's bill of lading, is primarily liable for the charge. 2 * Petitioner Southern Pacific Transportation Company (SP) is a common carrier by rail. Respondent Commercial Metals Company (Metals), a Delaware corporation with principal place of business in Dallas, Tex., is in the business of buying and selling steel goods. Petitioner instituted this action against respondent in the United States District Court for the Northern District of Texas to recover freight charges for three cars of steel cobble shipped by rail in 1974 from Detroit, Mich., to Alhambra, Cal. 3 Each of the three shipments was consigned by Metals to Penn Central Transportation Company, as initial carrier,1 under the uniform straight bill of lading prescribed by the ICC. Each bill of lading included a "nonrecourse" clause that the consignor might sign. That clause reads: "Subject to Section 7 of Conditions, if the shipment is to be delivered to the consignee without recourse on the consignor, the consignor shall sign the following statement: The carrier shall not make delivery of this shipment without payment of freight and all other lawful charges."2 In each instance, respondent Metals, as consignor, failed to execute this nonrecourse clause. Metals, however, already had received payment for the goods prior to shipment. Tr. of Oral Arg. 5, 6, 24-25; Brief for Respondent 21. 4 The first of the three cars was tendered to Penn Central at Detroit on April 11, 1974, for transportation to Carco Steel Corporation (Carco), as consignee, in Alhambra. SP released the car to Carco on April 25 without collecting the freight charge in advance of delivery. On the same day, however, SP mailed to Carco a bill for $4,634.11, the correct amount of the charge. Carco was not a credit patron of SP and had never applied to SP for credit. SP never before had made a delivery to Carco. Nevertheless, the carrier made no investigation of Carco's credit standing. 5 The second and third shipments took place on May 2, 1974, when Metals consigned two other cars of cobble to Penn Central for transportation to Carco. SP delivered the cars to Carco on May 16. This time, SP released the cars only after receiving checks from Carco in the respective amounts of $5,761.79 and $2,383.67 for the freight charges. The larger amount was correct, but the smaller check should have been for $3,283.66 and thus was $900 short.3 On May 20, SP issued freight bills in the correct amounts to Carco. The two checks were dishonored by Carco's bank for insufficient funds. 6 In August 1974, after efforts to collect the unpaid freight charges from Carco had proved fruitless, SP filed suit against Carco in a California state court. Attempts to serve the summons and complaint were unsuccessful. 7 On December 17, 1976, more than 30 months after the shipments, SP notified Metals of Carco's failure to pay the freight charges. SP requested that Metals, as the consignor who had failed to execute the nonrecourse provision in the bills of lading, pay the $13,679.56 total charges in satisfaction of its primary liability for the three shipments. This was the first notice to Metals that the freight charges had not been collected from Carco. When payment was not forthcoming, SP instituted the present action against Metals in federal court. 8 On this record, stipulated by the parties, the District Court ruled that SP had established a prima facie case for the recovery of the freight charges from Metals. It found the charges correct and in accord with applicable tariffs and that no part of those charges had been paid. App. 22. "Absent a showing of valid and affirmative defenses," then, Metals was liable to the carrier. Id., at 23. The court rejected Metals' claim that the passage of time barred SP's recovery; although Metals lacked notice until December 1976 that the charges for the 1974 shipments had not been paid, the court noted that the applicable period of limitation was three years and that the carrier had been making efforts to locate Carco and to receive payment. 9 The District Court, however, went on to hold that Metals had established a valid equitable defense to SP's collection of the charges by showing that SP had failed to comply with the ICC's credit regulations promulgated pursuant to § 3(2) of the Interstate Commerce Act, 49 U.S.C. § 3(2).4 App. 23. See 49 CFR pt. 1320 (1981). The court was not persuaded by SP's suggestion that Metals had failed to avail itself of its contractual opportunity for exoneration afforded by the nonrecourse provision in the bills of lading. The court concluded: "The loss sustained by [SP] was due entirely to its own fault and negligence by failing to take the proper credit precautions when it delivered the goods to Carco. . . . I think that it is fundamentally unfair and inequitable for the defendant in this case to pay for the gross negligence of the plaintiff." App. 24. Accordingly, judgment was entered for Metals. Id., at 26. 10 The United States Court of Appeals for the Fifth Circuit affirmed that judgment. 641 F.2d 235 (1981). Like the District Court, the Court of Appeals acknowledged that in the absence of a valid defense, Metals must be held liable to SP for the freight charges. Id., at 236. The court felt, however, that § 3(2) of the Act, the payment-before-delivery provision, provided a barrier to the carrier's collection of the charges from the consignor.5 The implementing regulation,6 which modified the statutory mandate by allowing for delivery of freight on credit for up to five days, nevertheless was "quite strict." Ibid. Thus, Metals could assert as a defense the carrier's extension of credit to Carco without adequate precautions for a period in excess of that provided by the regulation. The court concluded: "Under these circumstances, we are compelled to hold that the carrier's failure to comply with the applicable ICC regulations is a defense, available to [Metals], in an action by [SP] for unpaid freight charges." Id., at 239. 11 Because of a conflict in the decided cases,7 we granted certiorari. 454 U.S. 1052, 102 S.Ct. 595, 70 L.Ed.2d 587 (1981). II 12 Since 1919, the ICC has prescribed a uniform bill of lading for use on all interstate domestic shipments of freight by rail. See In re Bills of Lading, 52 I.C.C. 671 (1919), modified, 64 I.C.C. 357 (1921), further modified, 66 I.C.C. 63 (1922).8 The bill of lading is the basic transportation contract between the shipper-consignor and the carrier; its terms and conditions bind the shipper and all connecting carriers. Texas & Pacific R. Co. v. Leatherwood, 250 U.S. 478, 481, 39 S.Ct. 517, 518, 63 L.Ed. 1096 (1919). "Each [term] has in effect the force of a statute, of which all affected must take notice." Ibid. Unless the bill provides to the contrary, the consignor remains primarily liable for the freight charges. When the ICC first promulgated the uniform bill of lading, it stated: 13 "The consignor, being the one with whom the contract of transportation is made, is originally liable for the carrier's charges and unless he is specifically exempted by the provisions of the bill of lading, or unless the goods are received and transported under such circumstances as to clearly indicate an exemption for him, the carrier is entitled to look to the consignor for his charges." In re Bills of Lading, 52 I.C.C., at 721. 14 This rule has not changed over time. Recently, the ICC again observed that the consignor's liability "is governed by the bill of lading contract between the parties and must be decided by interpreting that contract." C-G-F Grain Co. v. Atchison T. & S. F. R. Co., 351 I.C.C. 710, 712 (1976). 15 Clearly, then, under the contract between Metals as consignor and SP as the carrier, the consignor was primarily liable for the freight charges in question. Just as clearly, however, Metals was in a position to effectuate its release from liability by executing the nonrecourse clause in the bill of lading. Signing that clause would have operated to excuse Metals from liability. By failing to execute the nonrecourse provision, Metals continued to be primarily liable for those charges. Illinois Steel Co. v. Baltimore & O. R. Co., 320 U.S. 508, 513, 64 S.Ct. 322, 325, 88 L.Ed. 259 (1944); New York, N. H. & H. R. Co. v. California Fruit Growers Exchange, 125 Conn. 241, 254-255, 5 A.2d 353, 359, cert. denied, 308 U.S. 567, 60 S.Ct. 79, 84 L.Ed. 476 (1939). See also Louisville & Nashville R. Co. v. Central Iron Co., 265 U.S. 59, 65-67, 44 S.Ct. 441, 442, 68 L.Ed. 900 (1924). 16 It is perhaps appropriate to note that a carrier has not only the right but also the duty to recover its proper charges for services performed. Id., at 65-66, and n. 3, 44 S.Ct., at 442 and n. 3. See Pitts- burgh, C., C. & St. L. R. Co. v. Fink, 250 U.S. 577, 581-583, 40 S.Ct. 27, 27-28, 63 L.Ed. 1151 (1919). This rule of strict adherence to statutory standards is in line with the historic purpose of the Interstate Commerce Act—to achieve uniformity in freight transportation charges, and thereby to eliminate the discrimination and favoritism that had plagued the railroad industry in the late 19th century. Midstate Horticultural Co. v. Pennsylvania R. Co., 320 U.S. 356, 361, 64 S.Ct. 128, 130, 88 L.Ed. 96 (1943); New York, N. H. & H. R. Co. v. ICC, 200 U.S. 361, 391, 26 S.Ct. 272, 276, 50 L.Ed. 515 (1906). 17 Both the District Court and the Court of Appeals correctly found that SP had established a prima facie case of Metals' liability for the freight charges in question by proving that Metals had failed to sign the nonrecourse clause. This much, indeed, is conceded by Metals. Brief for Respondent 11; Tr. of Oral Arg. 31. III 18 SP concedes that its failure to collect all freight charges from Carco before releasing the shipments violated the ICC regulation with regard to at least the first of the three shipments. Id., at 4, 17. See 49 CFR § 1320.1 (1981), quoted in n. 6, supra. The question, then, is whether the Court of Appeals properly found that SP's violation of the regulation provided Metals with an equitable affirmative defense to SP's prima facie case.9 19 A. The ICC has comprehensively regulated the extension of credit to shippers by rail carriers. See 49 CFR pt. 1320 (1981). Yet neither the statute under which the regulations were promulgated, 49 U.S.C. § 3(2), nor the regulations themselves intimate that a carrier's violation of the credit rules automatically precludes it from collecting the lawful freight charge. Nor does either contain any words of affirmative defense to a freight charge action. Indeed, to the extent the ICC has spoken to this question, it has stated: "[A] violation of section 3(2) by [a carrier], in itself, would have had no effect on [a consignor's] responsibility for payment of undercharges." C-G-F Grain Co. v. Atchison, T. & S. F. R. Co., 351 I.C.C., at 712. Although § 3(2) "prohibits a rail carrier from delivering freight without collecting all charges thereon[,] . . . it contains no provision shielding a consignor from liability for lawful charges." Ibid. Thus, at least in dictum, the ICC has suggested that "[t]he question of [a consignor's] liability [under a bill of lading] does not turn on whether any provision of the act has been violated." Ibid. 20 We view the absence of any provision for an affirmative defense in the ICC's credit regulations as an administrative construction of the statute that aids our determination of congressional intent. "[L]egislative silence is not always the result of a lack of prescience; it may instead betoken permission or, perhaps, considered abstention from regulation. . . . Accordingly, caution must temper judicial creativity in the face of legislative or regulatory silence." Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565, 100 S.Ct. 790, 797, 63 L.Ed.2d 22 (1980). We so regard the administrative silence here. When an administrative agency historically has engaged in comprehensive regulation of an industry's credit practices, the agency's silence regarding an affirmative defense based on a violation of those regulations must be deemed significant. 21 B. The legislative and administrative history of the credit regulations further indicates that this silence was not inadvertent—the intent of the rules was to protect carriers, not to penalize them. Prior to 1918, the Federal Government did not regulate the extension of credit by rail carriers. Wartime regulation revealed, however, that a general requirement of payment before delivery would protect the working capital of carriers and avoid discrimination among credit recipients. Cf. Ex parte No. MC-1, 2 M.C.C. 365, 374 (1937). After the first World War, when Congress returned the railroads to private control, § 405 of the Transportation Act, 1920, 41 Stat. 479, added paragraph (2) to § 3 of the Interstate Commerce Act. See n. 5, supra. The regulations adopted by the ICC in 1920 under the statute as so amended permitted railroads to extend limited credit to shippers on a nondiscriminatory basis. The regulations have remained largely unchanged to the present time. Until 1971, no court seriously suggested that a violation of the credit regulations precluded a carrier from collecting a freight charge from the party with primary liability. Instead, a defense of estoppel based on a violation of the credit regulations was held to be inconsistent with the purpose of the regulations themselves. Courts were concerned that a rule permitting selective estoppels would defeat the antidiscriminatory purpose of the Act and would weaken the capital structure of common carriers. See, e.g., Western Maryland R. Co. v. Cross, 96 W.Va. 666, 673, 123 S.E. 572, 575 (1924); Chicago Junction R. Co. v. Duluth Log Co., 161 Minn. 466, 469, 202 N.W. 24, 25 (1925); East Texas Motor Freight Lines v. Franklin County Distilling Co., 184 S.W.2d 505, 507 (Tex.Civ.App.1944). 22 Despite the absence of any textual or historical support for an affirmative defense in either the statute or the regulations, the Court of Appeals concluded that Metals could raise SP's failure to comply fully with the regulations as an absolute equitable defense to SP's freight charge action. The Court of Appeals relied primarily on what it regarded as "a closely analogous situation," 641 F.2d, at 237, presented in Consolidated Freightways Corp. v. Admiral Corp., 442 F.2d 56 (CA7 1971). On examination, however, that Seventh Circuit case plainly is distinguishable from the present one. The defendant there was a consignee to whom goods had been delivered under bills of lading marked "prepaid." Relying upon the carrier's explicit representation of prepayment, the consignee paid the amount of the freight charges to the shipper-consignor. In fact, however, the carrier had extended credit to the consignor and had failed to collect the charges within the period allowed by the regulations. When the consignor went out of business, the carrier turned to the consignee for payment. The Court of Appeals, by a divided vote, held the carrier estopped. 23 Admiral differs from this case in four crucial respects. First, in Admiral, the carrier not only violated ICC credit regulations but also made to the defendant a material misrepresentation regarding prepayment. The carrier here, in contrast, was charged solely with failure to observe the applicable ICC credit regulations. Second, in the Seventh Circuit case, the consignee-defendant had paid full freight charges to the consignor. Had the Seventh Circuit also awarded relief to the carrier, it would have "require[d] an innocent consignee to defray freight charges exactly double the amount contemplated by the applicable tariffs." 442 F.2d, at 65 (Stevens, J., concurring). Here, the defendant paid no freight charges; thus, an award of relief to the carrier creates no possibility of enforcing a double payment. 24 Third, in Admiral, the grounds for equitable estoppel were created by the consignee's payment of freight charges in detrimental reliance on the carrier's misrepresentation. The carrier's violation of the credit regulations offered only "additional grounds for the intervention of the principles of equity." Id., at 60 (majority opinion). In this case, there is no suggestion that the consignor knew of, or changed its position detrimentally in reliance on, the carrier's credit violation. Fourth, and most significant, the defendant-consignee in the Seventh Circuit case had no means by which to protect itself from freight charge liability. In this case, of course, the defendant-consignor could have protected itself completely simply by signing the nonrecourse clause in the bills of lading. 25 C. Finally, public policy concerns disfavor judicial implication of affirmative defenses based on carrier violations of the Commission's credit regulations. We recognize that the regulations are technical. Thousands of railcars are delivered every day by the country's railroads. See Association of American Railroads, Yearbook of Railroad Facts 25 (1981) (approximately 62,000 deliveries per day). Almost inevitably, some cars will be delivered to noncredit patrons, some freight bills will be sent out late, and some accounts will not be collected within the specified time. A 1966 study by the ICC's Bureau of Enforcement found that almost a third of 15,751 bills examined were overdue and that over half of those overdue were delinquent more than 10 days. See In re Regulations for Payment of Rates and Charges, 326 I.C.C. 483, 485 (1966).10 After appraising this data, the ICC agreed that "the evidence establishes many and continued violations of the credit regulations. However, we are unable to conclude on this record that rigid rules . . . would provide a practical or desirable solution. [T]here are many reasons for credit violations which are beyond correction by rules, e.g., where shippers have unexpected peak workloads, where there are controversies over amounts due, where additional information is needed such as weights or evaluations, where standard office procedures are in the process of change, where temporary cash flow problems occur, and where it becomes necessary to check the validity of charges with third persons. Stringent credit rules . . . would destroy the flexibility needed to meet problems of this nature." Id., at 489-490. Indeed, in 1980, the ICC proposed repealing the credit regulations altogether, noting that "apparent, widespread noncompliance with the regulations indicates that the payment periods and other time limits prescribed are simply not realistic for many of the situations in which they apply." Ex parte Nos. MC-1, 73, 143, and 170, 45 Fed.Reg. 31766. 26 It thus appears that the Court of Appeals in the present case implied an affirmative defense that would penalize railroads for violations of the credit regulations just as the agency responsible for administering those regulations was pronouncing them unrealistic. The prospect raised for the carrier is that it will be barred from recovering lawful freight charges, even from a consignor who fails to execute the nonrecourse clause, for possibly unavoidable violations of the credit rules. "The obvious consequence would be to discourage [carriers] from extending credit where the operation of this rather difficult statute is in doubt." Bruce's Juices, Inc. v. American Can Co., 330 U.S. 743, 753, 67 S.Ct. 1015, 1019, 91 L.Ed. 1219 (1947). Ironically, those shippers who pay their bills currently in a responsible manner would suffer as a result. 27 Metals argues that a ruling for SP places SP "in the unrealistic position of being incapable of doing any wrong" and therefore creates "no incentive [for carriers] to improve inefficient and careless credit practices." Brief for Respondent 12. Metals further claims that the loss at issue here would not have occurred if SP only had complied with its obligations under the regulations. Id., at 24. The answer to this is that the ICC has ample authority to police the credit practices of carriers and thereby to deter improper practices. This authority includes the power to issue a cease-and-desist order, see Shaw Warehouse Co. v. Southern R. Co., 308 I.C.C. 609, 633-634, 637 (1959), appeal dism'd sub nom. Southern R. Co. v. United States, 186 F.Supp. 29 (ND Ala.1960); the power to seek a federal-court injunction requiring a carrier to comply with the regulations, see ICC v. All-American, Inc., 505 F.2d 1360 (CA7 1974); and the power to bring suit for the $5,000 civil forfeiture, provided by 49 U.S.C. § 16(8) and 49 U.S.C. § 11901(a) (1976 ed., Supp. III), for each knowing violation of an order of the Commission, see, e.g., United States v. Western Pacific R. Co., 385 F.2d 161 (CA10 1967), cert. denied sub nom. Denver & R. G. W. R. Co. v. United States, 391 U.S. 919, 88 S.Ct. 1805, 20 L.Ed.2d 656 (1968); United States v. Pennsylvania R. Co., 308 F.Supp. 293 (ED Pa.1969). 28 Thus, the ICC may regulate the credit practices of carriers even without the judicially created remedy of forfeiture of freight charges. Furthermore, a reading of the cited cases reveals that the question whether a credit violation has occurred often will require the ICC or the courts to conduct a factual inquiry as to the carrier's intent to violate the regulations. The "credit violation defense" adopted by the Court of Appeals requires a carrier to forfeit freight charges without regard to the nature of its violation.11 This inflexible approach disenables courts from considering the carrier's intent, the degree of the shipper's fault, the effect of enforcement on the carrier's existing permissible credit practices, and other subjective factors in deciding whether or not to enforce a shipper's primary liability for freight charges. 29 Metals also advances a number of "double payment" cases in support of its claim for an affirmative defense. See, e.g., Southern Pacific Transp. Co. v. Campbell Soup Co., 455 F.2d 1219 (CA8 1972); Consolidated Freightways Corp. v. Admiral Corp., 442 F.2d 56 (CA7 1971); Farrell Lines, Inc. v. Titan Industrial Corp., 306 F.Supp. 1348 (SDNY), aff'd, 419 F.2d 835 (CA2 1969), cert. denied, 397 U.S. 1042, 90 S.Ct. 1365, 25 L.Ed.2d 653 (1970); Southern Pacific Co. v. Valley Frosted Foods Co., 178 Pa.Super. 217, 116 A.2d 70 (1955). To be sure, these cases speak in equity terms. But none of these cases turned solely on a carrier's violation of credit regulations. Each and all of them involved a carrier's misrepresentation, such as a false assertion of prepayment on the bill of lading, upon which a consignee detrimentally relied only to find itself later sued by the carrier for the same freight charges. We find that these double payment cases constitute their own category and stand against the placement of duplication of liability upon an innocent party. See Consolidated Freightways Corp. v. Admiral Corp., 442 F.2d, at 65 (Stevens, J., concurring). 30 As we have noted above, no similar double payment liability is in prospect here. Metals, not the carrier, selected the consignee. Furthermore, Metals has been paid for its goods while the carrier has not been paid for its services. The carrier unsuccessfully has pursued its remedies against the consignee before turning to the shipper-consignor for payment. Nor had the statute of limitation run when SP finally sued Metals for payment. 31 We, of course, are in no position to condone slipshod collection practices and a carrier's violation of the governing regulations. But the terms of the bill of lading are specific and clear. Metals' failure to execute the nonrecourse provision in the bill of lading specifically placed upon it primary liability for the freight charges. To permit SP's violation of the credit regulations to be raised as an affirmative defense to its prima facie case would serve to nullify the enforceability of the nonrecourse clause. Nor do we believe that judicial implication of such a defense is necessary to encourage carrier compliance with credit rules. Railroads have real economic incentives to collect their freight charges from consignees insofar as they are able. The remedies for a carrier's violations of the regulations are best left to the ICC for such resolution as it thinks proper. 32 We therefore hold that the Court of Appeals erred by permitting Metals to assert an affirmative defense against SP based on its violation of the ICC credit regulations. Such "equities" as may exist by virtue of the carrier's delay and its violation of the credit regulations are insufficient in magnitude to overcome the time-honored rule that under such circumstances, no "act or omission of the carrier (except the running of the statute of limitations) [will] estop or preclude it from enforcing payment of the full amount by a person liable therefor." Louisville & Nashville R. Co. v. Central Iron Co., 265 U.S., at 65, 44 S.Ct., at 442. 33 The judgment of the Court of Appeals is reversed. 34 It is so ordered. 1 The shipments moved over the respective lines of the Penn Central, the St. Louis Southwestern Railway Company (an SP subsidiary), and the SP. Pursuant to an interline agreement, SP has paid the other two carriers their proportionate shares of the freight charges earned on the shipments. 2 Section 7 of the Conditions of the Bill of Lading reads in pertinent part: "The owner or consignee shall pay the freight and average, if any, and all other lawful charges accruing on said property; but, except in those instances where it may lawfully be authorized to do so, no carrier by railroad shall deliver or relinquish possession at destination of the property covered by this bill of lading until all tariff rates and charges thereon have been paid. The consignor shall be liable for the freight and all other lawful charges, except that if the consignor stipulates, by signature, in the space provided for that purpose on the face of this bill of lading that the carrier shall not make delivery without requiring payment of such charges and the carrier, contrary to such stipulation, shall make delivery without requiring such payment, the consignor (except as hereinafter provided) shall not be liable for such charges. . . . The term 'delivering carrier' means the line-haul carrier making ultimate delivery." (Emphasis added.) 3 SP suggests that the $900 difference was occasioned by a transposition of the initial digits. Brief for Petitioner 31, n. 21. No explanation of the one-cent variance is offered. 4 In 1978, the Interstate Commerce Act was revised and recodified by Pub.L. 95-473, 92 Stat. 1337, as 49 U.S.C. § 10101 et seq. (1976 ed., Supp. III). Because the transactions at issue in this case took place prior to 1978, we refer to the Act in its prior form unless otherwise specified. 5 Section 3(2) reads: "No carrier by railroad . . . shall deliver or relinquish possession at destination of any freight . . . shipment transported by it until all tariff rates and charges thereon have been paid, except under such rules and regulations as the Commission may from time to time prescribe to govern the settlement of all such rates and charges and to prevent unjust discrimination. . . ." 6 The applicable regulation reads in pertinent part: "The carrier, upon taking precautions deemed by it to be sufficient to assure payment of the tariff charges within the credit periods specified in this part, may relinquish possession of the freight in advance of the payment of the tariff charges thereon and may extend credit in the amount of such charges to those who undertake to pay such charges, such persons herein being called shippers, for a period of 4 days (or 5 days where retention or possession of freight by the carrier until tariff rates and charges thereon have been paid will retard prompt delivery or will retard prompt release of equipment or station facilities) as set forth in this part." 49 CFR § 1320.1 (1981) (emphasis added). 7 In agreement with the decision of the Fifth Circuit in the present case is Brown Transportation Corp. v. Atcon, Inc., 144 Ga.App. 301, 241 S.E.2d 15 (1977), cert. denied sub nom. Brown Transport Corp. v. Atcon, Inc., 439 U.S. 1014, 99 S.Ct. 626, 58 L.Ed.2d 687 (1978) (with two Justices dissenting). The contrary result has been reached in other cases. See, e.g., Consolidated Freightways Corp. v. Pacheco Int'l Corp., 488 F.Supp. 68 (CD Cal.1979), and Pennsylvania R. Co. v. Marcelletti, 256 Mich. 411, 240 N.W. 4 (1932). There is disagreement, too, as to whether equitable defenses may be asserted in various other situations where regulated carriers seek to recover lawful tariff charges. Compare, e.g., Aero Mayflower Transit Co. v. Hofberger, 259 Ark. 322, 532 S.W.2d 759 (1976), and Westover v. United Van Lines, Inc., 154 Ga.App. 865, 270 S.E.2d 74 (1980) (defenses upheld), with Bartlett-Collins Co. v. Surinam Nav. Co., 381 F.2d 546 (CA10 1967); American Red Ball Transit Co. v. McCarthy, 114 N.H. 514, 323 A.2d 897 (1974), cert. denied, 420 U.S. 930, 95 S.Ct. 1131, 43 L.Ed.2d 401 (1975); Western Maryland R. Co. v. Cross, 96 W.Va. 666, 123 S.E. 572 (1924); and Arizona Feeds v. Southern Pacific Transp. Co., 21 Ariz.App. 346, 519 P.2d 199 (1974) (defenses not recognized). This division prompted one commentator some years ago to refer to the "striking lack of uniformity in decisions concerning the liability of consignors and consignees despite the obvious need for uniformity in interstate commercial transactions." Note, Carriers: Federal Bills of Lading: Liability of Parties to a Prepaid Shipment, 38 Cornell L.Q. 596, 603 (1953). 8 The form of the bill of lading has been modified several times since 1922, see, e.g., In re Bills of Lading, 245 I.C.C. 527 (1941), but only the 1921 and 1922 modifications affected the provisions of the bill of lading relevant to this case. 9 Metals now asserts, as well, that SP's actions violated § 7 of the Conditions of the Bill of Lading, see n. 2, supra, and thus constituted a complete abrogation of SP's contractual obligations under the bill of lading. See Brief for Respondent 11. SP answers that this argument was presented to neither the District Court nor the Court of Appeals. See Reply Brief for Petitioner 4. Because the Court of Appeals did not rely on this theory to grant respondent relief, and because we did not grant certiorari to consider this breach-of-contract claim, we decline to address it. 10 The methodology of this study was questioned by the railroads. The roads' own figures, however, showed that of 445,984 collectible items accrued during the period of the investigation, more than 10,000 resulted in credit violations. 326 I.C.C., at 486. 11 The facts of this case illustrate the problems that may arise when a court ventures to create law in this highly technical field. The rulings of the District Court and the Court of Appeals denied SP recovery not only for the first car, which was delivered without any payment upon the freight charge, but also for the two cars for which it did demand payment before delivery and received checks for the charges. Yet acceptance of a proper check as payment for a freight charge is an acknowledged commercial practice in the railroad industry. See Fullerton Lumber Co. v. Chicago, M., St. P. & P. R. Co., 282 U.S. 520, 522, 51 S.Ct. 227, 228, 75 L.Ed. 502 (1931); see also 49 CFR § 1320.13 (1981). It therefore is at least possible that SP's insistence on payment by check before releasing the second and third cars constituted compliance with the regulations, which require only that the railroad take "precautions deemed by it to be sufficient to assure payment of the tariff charges." 49 CFR § 1320.1 (1981). It is true, of course, that the check for one car was understated by $900, but, as has been noted, SP mailed a freight bill for the correct amount to Carco within four days of the delivery. See 49 CFR § 1320.5 (1981) (carrier may extend credit for up to 30 days on balance due in the event of undercharges). Furthermore, it is by no means clear that SP could safely have deferred delivery of the second and third cars until after Carco had paid the charges on the first car. The carrier's lien for unpaid charges covers only the goods in the immediate shipment. 49 U.S.C. § 105. See Atlas S. S. Co. v. Colombian Land Co., 102 F. 358, 361 (CA2 1900). Once Carco offered to pay the charges on the second and third cars, even serious suspicion about Carco's financial health might not have allowed SP to withhold delivery without risking liability to Carco for conversion of its goods. See 49 U.S.C. § 88 (carrier's duty to deliver goods on demand).

78

456 U.S. 273 102 S.Ct. 1781 72 L.Ed.2d 66 PULLMAN-STANDARD, a Division of Pullman, Incorporated, Petitioner,v.Louis SWINT and Willie Johnson, etc. UNITED STEELWORKERS OF AMERICA, AFL-CIO, et al., Petitioners v. Louis SWINT and Willie James Johnson. Nos. 80-1190, 80-1193. Argued Jan. 19, 1982. Decided April 27, 1982. Syllabus Respondent black employees brought suit in Federal District Court against petitioners, their employer and certain unions, alleging that Title VII of the Civil Rights Act of 1964 was violated by a seniority system, maintained by petitioners. The District Court found that the differences in terms, conditions, or privileges of employment resulting from the seniority system "are 'not the result of an intention to discriminate' because of race or color" and held, therefore, that the system satisfied the requirements of § 703(h) of the Act. That section provides that it shall not be an unlawful employment practice for an employer to apply different compensation standards or different terms, conditions, or privileges of employment "pursuant to a bona fide seniority . . . system . . . provided that such differences are not the result of an intention to discriminate because of race." The Court of Appeals reversed, holding that the differences in treatment of employees under the seniority system resulted from an intent to discriminate and thus violated § 703(h). Although recognizing that Federal Rule of Civil Procedure 52(a) requires that a District Court's findings of fact not be set aside unless clearly erroneous, the Court of Appeals concluded that a finding of discrimination or nondiscrimination under § 703(h) was a finding of "ultimate fact" that the court would review by making "an independent determination of [the] allegations of discrimination, though bound by findings of subsidiary fact which are themselves not clearly erroneous." Held: The Court of Appeals erred in the course of its review of the District Court's judgment. Pp. 276-293. (a) Under § 703(h), a showing of a disparate impact alone is insufficient to invalidate a seniority system, even though the result may be to perpetuate pre-Act discrimination. Absent a discriminatory purpose, the operation of a seniority system is not an unlawful employment practice even if the system has some discriminatory consequences. Pp. 276-277. (b) Rule 52(a) does not divide findings of fact into those that deal with "ultimate" and those that deal with "subsidiary" facts. While the Rule does not apply to conclusions of law, here the District Court was not faulted for applying an erroneous definition of intentional discrimination. Rather, it was reversed for arriving at what the Court of Appeals thought was an erroneous finding as to whether the differential impact of the seniority system reflected an intent to discriminate on account of race for purposes of § 703(h). That question is a pure question of fact, subject to Rule 52(a)'s clearly-erroneous standard. Discriminatory intent here means actual motive; it is not a legal presumption to be drawn from a factual showing of something less than actual motive. Thus, a court of appeals may only reverse a district court's finding on discriminatory intent if it concludes that the finding is clearly erroneous under Rule 52(a). Pp. 285-290. (c) While the Court of Appeals correctly stated the controlling clearly-erroneous standard of Rule 52(a), its conclusion that the challenged seniority system was unprotected by § 703(h) was the product of the court's improper independent consideration of the totality of the circumstances it found in the record. When the Court of Appeals concluded that the District Court had erred in failing to consider certain relevant evidence, it improperly made its own determination based on such evidence. When a district court's finding as to discriminatory intent under § 703(h) is set aside for an error of law, the court of appeals is not relieved of the usual requirement of remanding for further proceedings to the tribunal charged with the task of factfinding in the first instance. Pp. 290-293. 624 F.2d 525, reversed and remanded. Michael H. Gottesman, Washington, D. C., for petitioners. Elaine R. Jones, Washington, D. C., for respondents. Justice WHITE delivered the opinion of the Court. 1 Respondents were black employees at the Bessemer, Ala., plant of petitioner Pullman-Standard (the Company), a manufacturer of railway freight cars and parts. They brought suit against the Company and the union petitioners—the United Steelworkers of America, AFL-CIO-CLC, and its Local 1466 (collectively USW) alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 78 Stat. 253, 42 U.S.C. § 2000e et seq. (1976 ed. and Supp.IV), and 42 U.S.C. § 1981.1 As they come here, these cases involve only the validity, under Title VII, of a seniority system maintained by the Company and USW. The District Court found "that the differences in terms, conditions or privileges of employment resulting [from the seniority system] are 'not the result of an intention to discriminate' because of race or color," App. to Pet. for Cert. in No. 80-1190, p. A-147 (hereinafter App.), and held, therefore, that the system satisfied the requirements of § 703(h) of the Act. The Court of Appeals for the Fifth Circuit reversed: 2 "Because we find that the differences in the terms, conditions and standards of employment for black workers and white workers at Pullman-Standard resulted from an intent to discriminate because of race, we hold that the system is not legally valid under section 703(h) of Title VII, 42 U.S.C. 2000e-2(h)." 624 F.2d 525, 533-534 (1980). 3 We granted the petitions for certiorari filed by USW and by the Company, 451 U.S. 906, 101 S.Ct. 1972, 68 L.Ed.2d 293 (1981), limited to the first question presented in each petition: whether a court of appeals is bound by the "clearly erroneous" rule of Federal Rule of Civil Procedure 52(a) in reviewing a district court's findings of fact, arrived at after a lengthy trial, as to the motivation of the parties who negotiated a seniority system; and whether the court below applied wrong legal criteria in determining the bona fides of the seniority system. We conclude that the Court of Appeals erred in the course of its review and accordingly reverse its judgment and remand for further proceedings. 4 * Title VII is a broad remedial measure, designed "to assure equality of employment opportunities." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973). The Act was designed to bar not only overt employment discrimination, "but also practices that are fair in form, but discriminatory in operation." Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). "Thus, the Court has repeatedly held that a prima facie Title VII violation may be established by policies or practices that are neutral on their face and in intent but that nonetheless discriminate in effect against a particular group." Teamsters v. United States, 431 U.S. 324, 349, 97 S.Ct. 1843, 1861, 52 L.Ed.2d 396 (1977) (hereinafter Teamsters). The Act's treatment of seniority systems, however, establishes an exception to these general principles. Section 703(h), 78 Stat. 257, as set forth in 42 U.S.C. § 2000e-2(h), provides in pertinent part: 5 "Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority . . . system . . . provided that such differences are not the result of an intention to discriminate because of race." Under this section, a showing of disparate impact is insufficient to invalidate a seniority system, even though the result may be to perpetuate pre-Act discrimination. In Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 82, 97 S.Ct. 2264, 2275, 53 L.Ed.2d 113 (1977), we summarized the effect of § 703(h) as follows: "[A]bsent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences." Thus, any challenge to a seniority system under Title VII will require a trial on the issue of discriminatory intent: Was the system adopted because of its racially discriminatory impact? 6 This is precisely what happened in these cases. Following our decision in Teamsters, the District Court held a new trial on the limited question of whether the seniority system was "instituted or maintained contrary to Section 703(h) of the new Civil Rights Act of 1964." App. A-125.2 That court concluded, as we noted above and will discuss below, that the system was adopted and maintained for purposes wholly independent of any discriminatory intent. The Court of Appeals for the Fifth Circuit reversed. II 7 Petitioners submit that the Court of Appeals failed to comply with the command of Rule 52(a) that the findings of fact of a district court may not be set aside unless clearly erroneous. We first describe the findings of the District Court and the Court of Appeals. 8 Certain facts are common ground for both the District Court and the Court of Appeals. The Company's Bessemer plant was unionized in the early 1940's. Both before and after unionization, the plant was divided into a number of different operational departments.3 USW sought to represent all production and maintenance employees at the plant and was elected in 1941 as the bargaining representative of a bargaining unit consisting of most of these employees. At that same time, IAM became the bargaining representative of a unit consisting of five departments.4 Between 1941 and 1944, IAM ceded certain workers in its bargaining unit to USW. As a result of this transfer, the IAM bargaining unit became all white. 9 Throughout the period of representation by USW, the plant was approximately half black. Prior to 1965, the Company openly pursued a racially discriminatory policy of job assignments. Most departments contained more than one job category and as a result most departments were racially mixed. There were no lines of progression or promotion within departments. 10 The seniority system at issue here was adopted in 1954.5 Under that agreement, seniority was measured by length of continuous service in a particular department.6 Seniority was originally exercised only for purposes of layoffs and hirings within particular departments. In 1956, seniority was formally recognized for promotional purposes as well. Again, however, seniority, with limited exceptions, was only exercised within departments; employees transferring to new departments forfeited their seniority. This seniority system remained virtually unchanged until after this suit was brought in 1971.7 11 The District Court approached the question of discriminatory intent in the manner suggested by the Fifth Circuit in James v. Stockham Valves & Fittings Co., 559 F.2d 310 (1977). There, the Court of Appeals stated that under Teamsters "the totality of the circumstances in the development and maintenance of the system is relevant to examining that issue." 559 F.2d, at 352. There were, in its view, however, four particular factors that a court should focus on.8 12 First, a court must determine whether the system "operates to discourage all employees equally from transferring between seniority units." Ibid. The District Court held that the system here "was facially neutral and . . . was applied equally to all races and ethnic groups." App. A-132. Although there were charges of racial discrimination in its application, the court held that these were "not substantiated by the evidence." Id., at A-133. It concluded that the system "applied equally and uniformly to all employees, black and white, and that, given the approximately equal number of employees of the two groups, it was quantitatively neutral as well." Id., at A-134.9 13 Second, a court must examine the rationality of the departmental structure, upon which the seniority system relies, in light of the general industry practice. James, supra, at 352. The District Court found that linking seniority to "departmental age" was "the modal form of agreements generally, as well as with manufacturers of railroad equipment in particular." App. A-137. Furthermore, it found the basic arrangement of departments at the plant to be rationally related to the nature of the work and to be "consistent with practices which were . . . generally followed at other unionized plants throughout the country." Id., at A-136 A-137. While questions could be raised about the necessity of certain departmental divisions, it found that all of the challenged lines of division grew out of historical circumstances at the plant that were unrelated to racial discrimination.10 Although unionization did produce an all-white IAM bargaining unit, it found that USW "cannot be charged with racial bias in its response to the IAM situation. [USW] sought to represent all workers, black and white, in the plant." Id., at A-145. Nor could the Company be charged with any racial discrimination that may have existed in IAM: 14 "The company properly took a 'hands-off' approach towards the establishment of the election units . . . . It bargained with those unions which were afforded representational status by the NLRB and did so without any discriminatory animus." Id., at A-146. 15 Third, a court had to consider "whether the seniority system had its genesis in racial discrimination," James, supra, at 352, by which it meant the relationship between the system and other racially discriminatory practices. Although finding ample discrimination by the Company in its employment practices and some discriminatory practices by the union,11 the District Court concluded that the seniority system was in no way related to the discriminatory practices: 16 "The seniority system . . . had its genesis . . . at a period when racial segregation was certainly being practiced; but this system was not itself the product of this bias. The system rather came about as a result of colorblind objectives of a union which—unlike most structures and institutions of the era—was not an arm of a segregated society. Nor did it foster the discrimination . . . which was being practiced by custom in the plant." App. A-144. 17 Finally, a court must consider "whether the system was negotiated and has been maintained free from any illegal purpose." James, supra, at 352. Stating that it had "carefully considered the detailed record of negotiation sessions and contracts which span a period of some thirty-five years," App. A-146, the court found that the system was untainted by any discriminatory purpose. Thus, although the District Court focused on particular factors in carrying out the analysis required by § 703(h), it also looked to the entire record and to the "totality of the system under attack." Id., at A-147. 18 The Court of Appeals addressed each of the four factors of the James test and reached the opposite conclusion. First, it held that the District Court erred in putting aside qualitative differences between the departments in which blacks were concentrated and those dominated by whites, in considering whether the system applied "equally" to whites and blacks.12 This is a purported correction of a legal standard under which the evidence is to be evaluated. 19 Second, it rejected the District Court's conclusion that the structure of departments was rational, in line with industry practice, and did not reflect any discriminatory intent. Its discussion is brief but focuses on the role of IAM and certain characteristics unique to the Bessemer plant. The court concluded: 20 "The record evidence, generally, indicates arbitrary creation of the departments by the company since unionization and an attendant adverse affect [sic] on black workers. The individual differences between the departmental structure at Pullman-Standard and that of other plants, and as compared with industry practice, are indicative of attempts to maintain one-race departments." 624 F.2d, at 532. 21 In reaching this conclusion, the Court of Appeals did not purport to be correcting a legal error, nor did it refer to or expressly apply the clearly-erroneous standard. 22 Third, in considering the "genesis" of the system, the Court of Appeals held that the District Court erred in holding that the motives of IAM were not relevant.13 This was the correction of a legal error on the part of the District Court in excluding relevant evidence. The court did not stop there, however. It went on to hold that IAM was acting out of discriminatory intent an issue specifically not reached by the District Court—and that "considerations of race permeated the negotiation and the adoption of the seniority system in 1941 and subsequent negotiations thereafter." Ibid. 23 Fourth, despite this conclusion under the third James factor the Court of Appeals then recited, but did not expressly set aside or find clearly erroneous, the District Court's findings with respect to the negotiation and maintenance of the seniority system. 24 The court then announced that "[h]aving carefully reviewed the evidence offered to show whether the departmental seniority system in the present case is 'bona fide' within the meaning of § 703(h) of Title VII, we reject the district court's finding." 624 F.2d, at 533. Elaborating on its disagreement, the Court of Appeals stated: 25 "An analysis of the totality of the facts and circumstances surrounding the creation and continuance of the departmental system at Pullman-Standard leaves us with the definite and firm conviction that a mistake has been made. There is no doubt, based upon the record in this case, about the existence of a discriminatory purpose. The obvious principal aim of the I.A.M. in 1941 was to exclude black workers from its bargaining unit. 26 That goal was ultimately reached when maneuvers by the I.A.M. and U.S.W. resulted in an all-white I.A.M. unit. The U.S.W., in the interest of increased membership, acquiesced in the discrimination while succeeding in significantly segregating the departments within its own unit. 27 "The district court might have reached a different conclusion had it given the I.A.M.'s role in the creation and establishment of the seniority system its due consideration." Ibid. (footnote omitted). 28 Having rejected the District Court's finding, the court made its own findings as to whether the USW seniority system was protected by § 703(h): 29 "We consider significant in our decision the manner by which the two seniority units were set up, the creation of the various all-white and all-black departments within the U.S.W. unit at the time of certification and in the years thereafter, conditions of racial discrimination which affected the negotiation and renegotiation of the system, and the extent to which the system and the attendant no-transfer rule locked blacks into the least remunerative positions within the company. Because we find that the differences in the terms, conditions and standards of employment for black workers and white workers at Pullman-Standard resulted from an intent to discriminate because of race, we hold that the system is not legally valid under section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h)." Id., at 533-534. 30 In connection with its assertion that it was convinced that a mistake had been made, the Court of Appeals, in a footnote, referred to the clearly-erroneous standard of Rule 52(a). Id., at 533, n. 6.14 It pointed out, however, that if findings "are made under an erroneous view of controlling legal principles, the clearly-erroneous rule does not apply, and the findings may not stand." Ibid. Finally, quoting from East v. Romine, Inc., 518 F.2d 332, 339 (CA5 1975), the Court of Appeals repeated the following view of its appellate function in Title VII cases where purposeful discrimination is at issue: 31 " 'Although discrimination vel non is essentially a question of fact it is, at the same time, the ultimate issue for resolution in this case, being expressly proscribed by 42 U.S.C.A. § 2000e-2(a). As such, a finding of discrimination or non-discrimination is a finding of ultimate fact. [Cites omitted.] In reviewing the district court's findings, therefore, we will proceed to make an independent determination of appellant's allegations of discrimination, though bound by findings of subsidiary fact which are themselves not clearly erroneous.' " 624 F.2d, at 533, n. 6. III 32 Pointing to the above statement of the Court of Appeals and to similar statements in other Title VII cases coming from that court,15 petitioners submit that the Court of Appeals made an independent determination of discriminatory purpose, the "ultimate fact" in this case, and that this was error under Rule 52(a). We agree with petitioners that if the Court of Appeals followed what seems to be the accepted rule in that Circuit, its judgment must be reversed.16 33 Rule 52(a) broadly requires that findings of fact not be set aside unless clearly erroneous. It does not make exceptions or purport to exclude certain categories of factual findings from the obligation of a court of appeals to accept a district court's findings unless clearly erroneous. It does not divide facts into categories; in particular, it does not divide findings of fact into those that deal with "ultimate" and those that deal with "subsidiary" facts. 34 The Rule does not apply to conclusions of law. The Court of Appeals, therefore, was quite right in saying that if a district court's findings rest on an erroneous view of the law, they may be set aside on that basis. But here the District Court was not faulted for misunderstanding or applying an erroneous definition of intentional discrimination.17 It was reversed for arriving at what the Court of Appeals thought was an erroneous finding as to whether the differential impact of the seniority system reflected an intent to discriminate on account of race. That question, as we see it, is a pure question of fact, subject to Rule 52(a)'s clearly-erroneous standard. It is not a question of law and not a mixed question of law and fact. 35 The Court has previously noted the vexing nature of the distinction between questions of fact and questions of law. See Baumgartner v. United States, 322 U.S. 665, 671, 64 S.Ct. 1240, 1243, 88 L.Ed. 1525 (1944). Rule 52(a) does not furnish particular guidance with respect to distinguishing law from fact. Nor do we yet know of any other rule or principle that will unerringly distinguish a factual finding from a legal conclusion. For the reasons that follow, however, we have little doubt about the factual nature of § 703(h)'s requirement that a seniority system be free of an intent to discriminate. 36 Treating issues of intent as factual matters for the trier of fact is commonplace. In Dayton Board of Education v. Brinkman, 443 U.S. 526, 534, 99 S.Ct. 2971, 2977, 61 L.Ed.2d 720 (1979), the principal question was whether the defendants had intentionally maintained a racially segregated school system at a specified time in the past. We recognized that issue as essentially factual, subject to the clearly-erroneous rule. In Commissioner v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960), the Court held that the principal criterion for identifying a gift under the applicable provision of the Internal Revenue Code was the intent or motive of the donor—"one that inquires what the basic reason for his conduct was in fact." Id., at 286, 80 S.Ct., at 1197. Resolution of that issue determined the ultimate issue of whether a gift had been made. Both issues were held to be questions of fact subject to the clearly-erroneous rule. In United States v. Yellow Cab Co., 338 U.S. 338, 341, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949), an antitrust case, the Court referred to "[f]indings as to the design, motive and intent with which men act" as peculiarly factual issues for the trier of fact and therefore subject to appellate review under Rule 52. 37 Justice Black's dissent in Yellow Cab suggested a contrary approach. Relying on United States v. Griffith, 334 U.S. 100, 68 S.Ct. 941, 92 L.Ed. 1236 (1948), he argued that it is not always necessary to prove "specific intent" to restrain trade; it is enough if a restraint is the result or consequence of a defendant's conduct or business arrangements. Such an approach, however, is specifically precluded by § 703(h) in Title VII cases challenging seniority systems. Differentials among employees that result from a seniority system are not unlawful employment practices unless the product of an intent to discriminate. It would make no sense, therefore, to say that the intent to discriminate required by § 703(h) may be presumed from such an impact. As § 703(h) was construed in Teamsters, there must be a finding of actual intent to discriminate on racial grounds on the part of those who negotiated or maintained the system. That finding appears to us to be a pure question of fact. 38 This is not to say that discriminatory impact is not part of the evidence to be considered by the trial court in reaching a finding on whether there was such a discriminatory intent as a factual matter.18 We do assert, however, that under § 703(h) discriminatory intent is a finding of fact to be made by the trial court; it is not a question of law and not a mixed question of law and fact of the kind that in some cases may allow an appellate court to review the facts to see if they satisfy some legal concept of discriminatory intent.19 Discriminatory intent here means actual motive; it is not a legal presumption to be drawn from a factual showing of something less than actual motive. Thus, a court of appeals may only reverse a district court's finding on discriminatory intent if it concludes that the finding is clearly erroneous under Rule 52(a). Insofar as the Fifth Circuit assumed otherwise, it erred. IV 39 Respondents do not directly defend the Fifth Circuit rule that a trial court's finding on discriminatory intent is not subject to the clearly-erroneous standard of Rule 52(a).20 Rather, among other things, they submit that the Court of Appeals recognized and, where appropriate, properly applied Rule 52(a) in setting aside the findings of the District Court. This position has force, but for two reasons it is not persuasive. 40 First, although the Court of Appeals acknowledged and correctly stated the controlling standard of Rule 52(a), the acknowledgment came late in the court's opinion. The court had not expressly referred to or applied Rule 52(a) in the course of disagreeing with the District Court's resolution of the factual issues deemed relevant under James v. Stockham Valves & Fittings Co., 559 F.2d 310 (1977).21 Furthermore, the paragraph in which the court finally concludes that the USW seniority system is unprotected by § 703(h) strongly suggests that the outcome was the product of the court's independent consideration of the totality of the circumstances it found in the record. 41 Second and more fundamentally, when the court stated that it was convinced that a mistake had been made, it then identified not only the mistake but also the source of that mistake. The mistake of the District Court was that on the record there could be no doubt about the existence of a discriminatory purpose. The source of the mistake was the District Court's failure to recognize the relevance of the racial purposes of IAM. Had the District Court "given the I.A.M.'s role in the creation and establishment of the seniority system its due consideration," it "might have reached a different conclusion." Supra, at 284. 42 When an appellate court discerns that a district court has failed to make a finding because of an erroneous view of the law, the usual rule is that there should be a remand for further proceedings to permit the trial court to make the missing findings: 43 "[F]actfinding is the basic responsibility of district courts, rather than appellate courts, and . . . the Court of Appeals should not have resolved in the first instance this factual dispute which had not been considered by the District Court." DeMarco v. United States, 415 U.S. 449, 450, n., 94 S.Ct. 1185, 1186, n., 39 L.Ed.2d 501 (1974).22 44 Likewise, where findings are infirm because of an erroneous view of the law, a remand is the proper course unless the record permits only one resolution of the factual issue. Kelley v. Southern Pacific Co., 419 U.S. 318, 331-332, 95 S.Ct. 472, 479-480, 42 L.Ed.2d 498 (1974). All of this is elementary. Yet the Court of Appeals, after holding that the District Court had failed to consider relevant evidence and indicating that the District Court might have come to a different conclusion had it considered that evidence, failed to remand for further proceedings as to the intent of IAM and the significance, if any, of such a finding with respect to the intent of USW itself. Instead, the Court of Appeals made its own determination as to the motives of IAM, found that USW had acquiesced in the IAM conduct, and apparently concluded that the foregoing was sufficient to remove the system from the protection of § 703(h).23 45 Proceeding in this manner seems to us incredible unless the Court of Appeals construed its own well-established Circuit rule with respect to its authority to arrive at independent findings on ultimate facts free of the strictures of Rule 52(a) also to permit it to examine the record and make its own independent findings with respect to those issues on which the district court's findings are set aside for an error of law. As we have previously said, however, the premise for this conclusion is infirm: whether an ultimate fact or not, discriminatory intent under § 703(h) is a factual matter subject to the clearly-erroneous standard of Rule 52(a). It follows that when a district court's finding on such an ultimate fact is set aside for an error of law, the court of appeals is not relieved of the usual requirement of remanding for further proceedings to the tribunal charged with the task of factfinding in the first instance. 46 Accordingly, the judgment of the Court of Appeals is reversed, and the cases are remanded to that court for further proceedings consistent with this opinion. 47 So ordered. 48 Justice STEVENS, concurring in part. 49 Except to the extent that the Court's preliminary comments on the burden of sustaining "any challenge to a seniority system under Title VII," ante, at 277, are inconsistent with the views I expressed separately in American Tobacco Co. v. Patterson, 456 U.S. 63, 86, 102 S.Ct. 1534, 1547, 71 L.Ed.2d 748, I join the Court's opinion. 50 Justice MARSHALL, with whom Justice BLACKMUN joins except as to Part I, dissenting. 51 In 1971, a group of Negro employees at Pullman-Standard's Bessemer, Ala., plant brought this class action against Pullman-Standard, the United Steelworkers of America and its Local 1466 (USW), and the International Association of Machinists and its Local 372 (IAM). The plaintiffs alleged, inter alia, that the departmental seniority system negotiated by both unions discriminated against Negroes in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1976 ed. and Supp.IV), and the Civil Rights Act of 1866, 42 U.S.C. § 1981. In 1974, the District Court for the Northern District of Alabama concluded that the seniority system did not operate to discriminate against Negroes. A unanimous panel of the Fifth Circuit reversed. The court ruled that the District Court had committed several errors of law, including failure to give proper weight to the role of the IAM, and had relied on patently inaccurate factual conclusions. Swint v. Pullman-Standard, 539 F.2d 77, 95-96 (1976). On remand, the District Court again ruled that the seniority system was immune from attack under Title VII, this time finding that respondents had failed to show discriminatory intent as required by this Court's decision in Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Ante, at 275. The Fifth Circuit again unanimously rejected the conclusion of the District Court. 624 F.2d 525 (1980). The majority now reverses the Fifth Circuit's second unanimous decision on the ground that the Court of Appeals did not pay sufficient homage to the "clearly erroneous" rule, Fed.Rule Civ.Proc. 52(a), in concluding that the seniority system at Pullman-Standard was the product of intentional discrimination against Negroes. Because I cannot agree with the premise of the majority's decision to remand these cases for yet another trial, or with its application of that premise to the facts of this case, I respectfully dissent. 52 * The majority premises its holding on the assumption that " 'absent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences.' " Ante, at 277, quoting Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 82, 97 S.Ct. 2264, 2275, 53 L.Ed.2d 113 (1977). As I have previously indicated, I do not find anything in the relevant statutory language or legislative history to support the proposition that § 703(h) of Title VII immunizes a seniority system that perpetuates past discrimination, as the system at issue here clearly does, simply because the plaintiffs are unable to demonstrate to this Court's satisfaction that the system was adopted or maintained for an invidious purpose. See Teamsters v. United States, supra, at 377-394, 97 S.Ct., at 1875-1884 (opinion of MARSHALL, J.). In my opinion, placing such a burden on plaintiffs who challenge seniority systems with admitted discriminatory impact, a burden never before imposed in civil suits brought under Title VII, frustrates the clearly expressed will of Congress and effectively "freeze[s] an entire generation of Negro employees into discriminatory patterns that existed before the Act." Quarles v. Philip Morris, Inc., 279 F.Supp. 505, 516 (ED Va.1968) (Butzner, J.). II 53 Even if I were to accept this Court's decision to impose this novel burden on Title VII plaintiffs, I would still be unable to concur in its conclusion that the Fifth Circuit's decision should be reversed for failing to abide by Rule 52(a). The majority asserts that the Court of Appeals in this action ignored the clearly-erroneous rule and made an independent determination of discriminatory purpose. I disagree. In my view, the court below followed well-established legal principles both in rejecting the District Court's finding of no discriminatory purpose and in concluding that a finding of such a purpose was compelled by all of the relevant evidence. 54 The majority concedes, as it must, that the "Court of Appeals acknowledged and correctly stated the controlling standard of Rule 52(a)." Ante, at 290. In a footnote to its opinion, the Court of Appeals plainly states that findings of fact may be overturned only if they are either "clearly erroneous" or "made under an erroneous view of controlling legal principles." 624 F.2d, at 533, n. 6. Furthermore, as the majority notes, ante, at 283, the Court of Appeals justified its decision to reject the District Court's finding that the seniority system was not the result of purposeful discrimination by stating: "An analysis of the totality of the facts and circumstances surrounding the creation and continuance of the departmental system at Pullman-Standard leaves us with the definite and firm conviction that a mistake has been made." 624 F.2d, at 533 (emphasis added; footnote omitted).1 I frankly am at a loss to understand how the Court of Appeals could have expressed its conclusion that the District Court's finding on the issue of intent was clearly erroneous with any more precision or clarity. 55 The majority rejects the Court of Appeals' clear articulation and implementation of the clearly-erroneous rule on the apparent ground that in the course of correctly setting forth the requirements of Rule 52(a), the court also included the following quotation from its prior decision in East v. Romine, Inc., 518 F.2d 332, 339 (1975): 56 " 'Although discrimination vel non is essentially a question of fact it is, at the same time, the ultimate issue for resolution in this case, being expressly proscribed by 42 U.S.C.A. § 2000e-2(a). As such, a finding of discrimination or nondiscrimination is a finding of ultimate fact. [Cites omitted]. In reviewing the district court's findings, therefore, we will proceed to make an independent determination of appellant's allegations of discrimination, though bound by findings of subsidiary fact which are themselves not clearly erroneous.' " 624 F.2d, at 533, n. 6. 57 The only question presented by this case, therefore, is whether this reference to East v. Romine, Inc. should be read as negating the Court of Appeals' unambiguous acknowledgment of the "controlling standard of Rule 52." Ante, at 290. The majority bases its affirmative answer to that question on two factors. First, the majority contends that the Court of Appeals must not have properly respected the clearly-erroneous rule because its acknowledgment that Rule 52(a) supplied the controlling standard "came late in the court's opinion." Ante, at 290. Second, the Court of Appeals "identified not only the mistake" that it felt had been made, "but also the source of that mistake." Ante, at 291. If the Court of Appeals had really been applying the clearly-erroneous rule, it should have abided by the "usual requirement of remanding for further proceedings to the tribunal charged with the task of fact-finding in the first instance." Ante, at 293. 58 Neither of these arguments justifies the majority's conclusion that these cases must be remanded for a fourth trial on the merits. I am aware of no rule of decision embraced by this or any other court that places dispositive weight on whether an accurate statement of controlling principle appears "early" or late in a court's opinion. Nor does the majority suggest a basis for this unique rule of interpretation. So long as a court acknowledges the proper legal standard, I should think it irrelevant whether it chooses to set forth that standard at the beginning or at the end of its opinion. The heart of the majority's argument, therefore, is that the failure to remand the action to the District Court after rejecting its conclusion that the seniority system was "bona fide" within the meaning of § 703(h) indicates that the Court of Appeals did not properly follow the clearly-erroneous rule. Before addressing this issue, however, it is necessary to examine the nature of the finding of "intent" required by this Court in Teamsters, the procedure that courts of appeals should follow in reviewing a district court's finding on intent, and the extent to which the court below adhered to that procedure in this case. 59 The District Court examined the four factors approved by the Fifth Circuit in James v. Stockham Valves & Fittings Co., 559 F.2d 310 (1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978), to determine whether the departmental seniority system at Pullman-Standard was adopted or maintained for a discriminatory purpose. Although indicating that these four factors are not the only way to demonstrate the existence of discriminatory intent,2 the Court today implicitly acknowledges that proof of these factors satisfies the requirements of Teamsters.3 In particular, the majority agrees that a finding of discriminatory intent sufficient to satisfy Teamsters can be based on circumstantial evidence, including evidence of discriminatory impact. See ante, at 289; see also Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 266, 267, 97 S.Ct. 555, 563, 564, 50 L.Ed.2d 450 (1977). 60 Given the nature of this factual inquiry, the court of appeals must first determine whether the district court applied correct legal principles and therefore considered all of the legally relevant evidence presented by the parties. This, as the majority acknowledges, is a "legal" function that the court of appeals must perform in the first instance. Ante, at 282, 283. Second, the court of appeals must determine whether the district court's finding with respect to intent is supported by all of the legally relevant evidence. This, the Court holds today, is generally a factual determination limited by the dictates of Rule 52(a). Finally, if the court of appeals sets aside the district court's finding with respect to intent, either because that finding is clearly erroneous or because it is based on an erroneous legal standard, it may determine, in the interest of judicial economy, whether the legally relevant evidence presented to the district court "permits only one resolution of the factual issue." Ante, at 1792. If only one conclusion is possible, the reviewing court is free to find the existence of the fact in question as a matter of law. See Bigelow v. Virginia, 421 U.S. 809, 826-827, 95 S.Ct. 2222, 2234-35, 44 L.Ed.2d 600 (1975); Levin v. Mississippi River Fuel Corp., 386 U.S. 162, 170, 87 S.Ct. 927, 932, 17 L.Ed.2d 834 (1967). 61 A common-sense reading of the opinion below demonstrates that the Court of Appeals followed precisely this course in examining the issue of discriminatory intent. Even the majority concedes that the Court of Appeals determined that the District Court committed "legal error" by failing to consider all of the relevant evidence in resolving the first and the third James factors. Ante, at 282, 283. With respect to the first James factor whether the system inhibits all employees equally from transferring between seniority units—the District Court found that the departmental system "locked" both Negro and white workers into departments by discouraging transfers. The District Court acknowledged that Negroes might suffer a greater impact because the company's previous discriminatory policy of openly maintaining "Negro" jobs and "white" jobs had caused Negroes to be concentrated in less desirable positions. The District Court concluded, however, that this differential impact was irrelevant in determining whether the seniority system operated neutrally. The Court of Appeals properly held that the District Court erred in failing to consider the fact that the departmental system locked Negroes into less desirable jobs. 62 Similarly, as for the third James factor—whether the seniority system had its genesis in racial discrimination—the District Court rejected respondents' argument that the motives of the IAM were relevant. It concluded that the USW could not be charged with the racial bias of the IAM. The Court of Appeals held that this conclusion was erroneous because the "motives and intent of the I.A.M. in 1941 and 1942 are significant in consideration of whether the seniority system has its genesis in racial discrimination." 624 F.2d, at 532.4 63 As the majority acknowledges, where findings of fact " 'are made under an erroneous view of controlling legal principles, the clearly erroneous rule does not apply, and the findings may not stand.' " Ante, at 285, quoting 624 F.2d, at 533, n. 6; see also Kelley v. Southern Pacific Co., 419 U.S. 318, 323, 95 S.Ct. 472, 475, 42 L.Ed.2d 498 (1974); United States v. General Motors Corp., 384 U.S. 127, 141, n. 16, 86 S.Ct. 1321, 1328, n. 16, 16 L.Ed.2d 415 (1966); United States v. Singer Manufacturing Co., 374 U.S. 174, 194, n. 9, 83 S.Ct. 1773, 1783, n. 9, 10 L.Ed.2d 823 (1963); United States v. Parke, Davis & Co., 362 U.S. 29, 44, 80 S.Ct. 503, 511, 4 L.Ed.2d 505 (1960); Rowe v. General Motors Corp., 457 F.2d 348, 356, n. 15 (CA5 1972). Having found that the District Court's findings as to the first and third James factors were made under an erroneous view of controlling legal principles, the Court of Appeals was compelled to set aside those findings free of the requirements of the clearly-erroneous rule.5 But once these two findings were set aside, the District Court's conclusion that the departmental system was bona fide within the meaning of § 703(h) also had to be rejected, since that conclusion was based at least in part on its erroneous determinations concerning the first and the third James factors. 64 At the very least, therefore, the Court of Appeals was entitled to remand this action to the District Court for the purpose of reexamining the bona fides of the seniority system under proper legal standards. However, as we have often noted, in some cases a remand is inappropriate where the facts on the record are susceptible to only one reasonable interpretation. See Dayton Board of Education v. Brinkman, 443 U.S. 526, 534-537, 99 S.Ct. 2971, 2977-78, 61 L.Ed.2d 720 (1979); Bigelow v. Virginia, supra, at 826-827, 95 S.Ct., at 2234-2235. In such cases, "[e]ffective judicial administration" requires that the court of appeals draw the inescapable factual conclusion itself, rather than remand the case to the district court for further needless proceedings. Levin v. Mississippi River Fuel Corp., 386 U.S., at 170, 87 S.Ct., at 932. Such action is particularly appropriate where the court of appeals is in as good a position to evaluate the record evidence as the district court. The major premise behind the deference to trial courts expressed in Rule 52(a) is that findings of fact "depend peculiarly upon the credit given to witnesses by those who see and hear them." United States v. Yellow Cab Co., 338 U.S. 338, 341, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949); see also United States v. Oregon State Medical Society, 343 U.S. 326, 332, 72 S.Ct. 690, 695, 96 L.Ed. 978 (1952). Indeed Rule 52(a) expressly acknowledges the importance of this factor by stating that "due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Consequently, this Court has been especially reluctant to resolve factual issues which depend on the credibility of witnesses. See generally United States v. Oregon State Medical Society, supra, at 332, 72 S.Ct., at 179. 65 In the cases before the Court today this usual deference is not required because the District Court's findings of fact were entirely based on documentary evidence.6 As we noted in United States v. General Motors Corp., supra, at 141, n. 16, 86 S.Ct., at 1328, n. 16, "the trial court's customary opportunity to evaluate the demeanor and thus the credibility of the witnesses, which is the rationale behind Rule 52(a) . . ., plays only a restricted role [in] a 'paper case.' " See also Jennings v. General Medical Corp., 604 F.2d 1300, 1305 (CA10 1979) ("When the findings of a trial court are based on documentary, rather than oral evidence, they do not carry the same weight on appellate review"); Orvis v. Higgins, 180 F.2d 537, 539 (CA2 1950).7 66 I believe that the Court of Appeals correctly determined that a finding of discriminatory intent was compelled by the documentary record presented to the District Court. With respect to three of the four James factors, the Court of Appeals found overwhelming evidence of discriminatory intent. First, in ruling that the District Court erred by not acknowledging the legal significance of the fact that the seniority system locked Negroes into the least remunerative jobs in the company, the Court of Appeals determined that such disproportionate impact demonstrated that the system did not " 'operat[e] to discourage all employees equally from transferring between seniority units.' " 624 F.2d, at 530, quoting James v. Stockham Valves & Fittings Co., 559 F.2d, at 352. Second, noting that "[n]o credible explanation ha[d] been advanced to sufficiently justify" the existence of two separate Die and Tool Departments and two separate Maintenance Departments, a condition not found at any other Pullman-Standard plant, or the creation of all-white and all-Negro departments at the time of unionization and in subsequent years, the Court of Appeals concluded that the second James factor had not been satisfied.8 624 F.2d, at 533. Finally, with respect to the third James factor the Court of Appeals found that once the role of the IAM was properly recognized, it was "crystal clear that considerations of race permeated the negotiation and the adoption of the seniority system in 1941 and subsequent negotiations thereafter." 624 F.2d, at 532.9 67 After reviewing all of the relevant record evidence presented to the District Court, the Court of Appeals concluded: "There is no doubt, based upon the record in this case, about the existence of a discriminatory purpose." Id., at 533. Because I fail to see how the Court of Appeals erred in carrying out its appellate function, I respectfully dissent from the majority's decision to prolong respondents' 11-year quest for the vindication of their rights by requiring yet another trial. 1 In their original complaint, besides challenging the seniority system discussed in this opinion, plaintiffs also alleged discrimination in job assignments and promotions and the failure to post publicly a list of changes in assignments. These were all brought as "class" issues. Two charges of individual discrimination were also brought. The Court of Appeals held that the Company had violated Title VII in making job assignments and in selecting foremen. In granting certiorari, we declined to review those aspects of the decision. 2 The procedural history of these cases is rather complex. The original complaint was filed in 1971. Since that time the case has been tried three times and has twice been reviewed by the Court of Appeals. 3 In 1941, prior to unionization, the Bessemer plant was divided into 20 departments. By 1954, there were 28 departments 26 USW units and 2 International Association of Machinists and Aerospace Workers (IAM) units. The departments remained essentially unchanged after 1954. 4 The International Brotherhood of Electrical Workers (IBEW) gained representation status for two small departments. The IBEW unit was all white. IBEW, however was decertified in 1946 and its members were re-absorbed into a department represented by USW. 5 A departmental seniority system was part of the initial collective-bargaining agreement between the Company and USW in 1942. Between 1947 and 1954, however, the seniority system changed from one based on departments to one based upon particular occupations within departments. In 1954, the system went back to a departmental base. 6 The only exceptions, until 1972 (see n. 7, infra), were for employees transferring at the request of the Company or for those electing transfer in lieu of layoff. 7 In 1972, the Company entered into an agreement with the Department of Labor to bring its employment practices into compliance with Executive Order No. 11246, 3 CFR 339 (1964-1965 Comp.). This provided an exception to the departmental limit on seniority, allowing certain black employees to make inter-departmental transfers without any loss of seniority. 8 The Fifth Circuit relied upon the following passage in Teamsters, 431 U.S., at 355-356, 97 S.Ct., at 1864-1865: "The seniority system in this litigation is entirely bona fide. It applies equally to all races and ethnic groups. To the extent that it 'locks' employees into non-line-driver jobs, it does so for all. . . . The placing of line drivers in a separate bargaining unit from other employees is rational, in accord with the industry practice, and consistent with National Labor Relation Board precedents. It is conceded that that seniority system did not have its genesis in racial discrimination, and that it was negotiated and has been maintained free from any illegal purpose." This passage was of course not meant to be an exhaustive list of all the factors that a district court might or should consider in making a finding of discriminatory intent. 9 The court specifically declined to make any finding on whether the no-transfer provision of the seniority system had a greater relative effect on blacks than on whites, because of qualitative differences in the departments in which they were concentrated. It believed that such an inquiry would have been inconsistent with the earlier Fifth Circuit opinion in this case. 10 In particular, the court focused on the history of the unionization process at the plant and found certain of the departmental divisions to be based on the evolving relationship between USW and IAM. 11 With respect to USW, the District Court found that "[u]nion meetings were conducted with different sides of the hall for white and black members, and social functions of the union were also segregated." App. A-142. It also found, however, that "[w]hile possessing some of the trappings taken from an otherwise segregated society, the USW local was one of the few institutions in the area which did not function in fact to foster and maintain segregation; rather, it served a joint interest of white and black workers which had a higher priority than racial considerations." Id., at A-143. 12 It does not appear to us that the District Court actually found a qualitative difference but held it to be irrelevant. The relevant passage of the District Court opinion read as follows: "By ranking the twenty-eight USW and IAM departments according to some perceived order of desirability, one could . . . attempt to measure the relative effect of the no-transfer rule on white and black employees . . . . It may well be that a somewhat greater impact was felt by blacks than whites although . . . this conclusion is by no means certain." Id., at A-134. 13 The original complaint in this case did not mention IAM. Prior to the first trial, respondents sought and received leave to amend their complaint to add IAM as a Rule 19 defendant, "insofar as the relief requested may involve or infringe upon the provisions of such Union's collective bargaining agreement with the Company." Order of the District Court, June 4, 1974 (App. 29). 14 In United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948), this Court characterized the clearly-erroneous standard as follows: "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." We note that the Court of Appeals quoted this passage at the conclusion of its analysis of the District Court opinion. Supra, at 283. 15 See Jackson v. City of Killeen, 654 F.2d 1181, 1184 (1981); Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1147 (1981); Wilkins v. University of Houston, 654 F.2d 388, 390 (1981); Lindsey v. Mississippi Research & Development Center, 652 F.2d 488, 492 (1981); Rohde v. K. O. Steel Castings, Inc., 649 F.2d 317, 320 (1981); Joshi v. Florida State University, 646 F.2d 981, 986 (1981); Phillips v. Joint Legislative Committee, 637 F.2d 1014, 1024 (1981); Danner v. United States Civil Service Comm'n, 635 F.2d 427, 430-431 (1981); Thompson v. Leland Police Dept., 633 F.2d 1111, 1112 (1980); Crawford v. Western Electric Co., 614 F.2d 1300, 1311 (1980); Burdine v. Texas Dept. of Community Affairs, 608 F.2d 563, 566 (1979); Williams v. Tallahassee Motors, Inc., 607 F.2d 689, 690 (1979); Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374, 1382 (1978); Causey v. Ford Motor Co., 516 F.2d 416, 420-421 (1975); East v. Romine, Inc., 518 F.2d 332, 338-339 (1975). 16 There is some indication in the opinions of the Court of Appeals for the Fifth Circuit (see n. 15, supra) that the Circuit rule with respect to "ultimate facts" is only another way of stating a standard of review with respect to mixed questions of law and fact—the ultimate "fact" is the statutory, legally determinative consideration (here, intentional discrimination) which is or is not satisfied by subsidiary facts admitted or found by the trier of fact. As indicated in the text, however, the question of intentional discrimination under § 703(h) is a pure question of fact. Furthermore, the Court of Appeals' opinion in this case appears to address the issue as a question of fact unmixed with legal considerations. At the same time, this Court has on occasion itself indicated that findings on "ultimate facts" are independently reviewable. In Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944), the issue was whether or not the findings of the two lower courts satisfied the clear and convincing standard of proof necessary to sustain a denaturalization decree. The Court held that the conclusion of the two lower courts that the exacting standard of proof had been satisfied was not an unreviewable finding of fact but one that a reviewing court could independently assess. The Court referred to the finding as one of "ultimate" fact, which in that case involved an appraisal of the strength of the entire body of evidence. The Court said that the significance of the clear-and-convincing-proof standard "would be lost" if the ascertainment by the lower courts whether that exacting standard of proof had been satisfied on the whole record were to be deemed a "fact" of the same order as all other "facts not open to review here." Id., at 671, 64 S.Ct., at 1243. The Fifth Circuit's rule on appellate consideration of "ultimate facts" has its roots in this discussion in Baumgartner. In Galena Oaks Corp. v. Scofield, 218 F.2d 217 (CA5 1954), in which the question was whether the gain derived from the sale of a number of houses was to be treated as capital gain or ordinary income, the Court of Appeals relied directly on Baumgartner in holding that this was an issue of "ultimate fact" that an appellate court may review free of the clearly-erroneous rule. Causey v. Ford Motor Co., supra, at 421, relying on Galena Oaks Corp. v. Scofield, supra, said that "although discrimination vel non is essentially a question of fact, it is, at the same time, the ultimate issue for resolution in this case" and as such, was deemed to be independently reviewable. The passage from East v. Romine, Inc., supra, at 339, which was repeated in the cases before us now, supra, at 339, rested on the opinion in Causey v. Ford Motor Co. Whatever Baumgartner may have meant by its discussion of "ultimate facts," it surely did not mean that whenever the result in a case turns on a factual finding, an appellate court need not remain within the constraints of Rule 52(a). Baumgartner's discussion of "ultimate facts" referred not to pure findings of fact—as we find discriminatory intent to be in this context—but to findings that "clearly impl[y] the application of standards of law." 322 U.S., at 671, 64 S.Ct., at 1243. 17 As we noted above, the Court of Appeals did at certain points purport to correct what it viewed as legal errors on the part of the District Court. The presence of such legal errors may justify a remand by the Court of Appeals to the District Court for additional factfinding under the correct legal standard. Infra, at 291-292. 18 See, e.g., Furnco Construction Corp. v. Waters, 438 U.S. 567, 580, 98 S.Ct. 2943, 2951, 57 L.Ed.2d 957 (1978): "Proof that [an employer's] 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." 19 We need not, therefore, address the much-mooted issue of the applicability of the Rule 52(a) standard to mixed questions of law and fact—i.e., questions in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated. There is substantial authority in the Circuits on both sides of this question. Compare United States ex rel. Johnson v. Johnson, 531 F.2d 169, 174, n. 12 (CA3 1976); Stafos v. Jarvis, 477 F.2d 369, 372 (CA10 1973); and Johnson v. Salisbury, 448 F.2d 374, 377 (CA6 1971), with Rogers v. Bates, 431 F.2d 16, 18 (CA8 1970); and Pennsylvania Casualty Co. v. McCoy, 167 F.2d 132, 133 (CA5 1948). There is also support in decisions of this Court for the proposition that conclusions on mixed questions of law and fact are independently reviewable by an appellate court, e.g., Bogardus v. Commissioner, 302 U.S. 34, 39, 58 S.Ct. 61, 64, 82 L.Ed. 32 (1937); Helvering v. Tex-Penn Oil Co., 300 U.S. 481, 491, 57 S.Ct. 569, 573, 81 L.Ed. 755 (1937); Helvering v. Rankin, 295 U.S. 123, 131, 55 S.Ct. 732, 736, 79 L.Ed. 1343 (1935). But cf., Commissioner v. Duberstein, 363 U.S. 278, 289, 80 S.Ct. 1190, 1198, 4 L.Ed.2d 1218 (1960); Commissioner v. Heininger, 320 U.S. 467, 475, 64 S.Ct. 249, 254, 88 L.Ed. 171 (1943). 20 Neither does the dissent contend that Rule 52(a) is inapplicable to findings of discriminatory intent. Rather, it contends, that the Rule was properly applied by the Court of Appeals. 21 In particular, in regard to the second James factor whether the departmental structure was rational or in line with industry practice—the Court of Appeals did not focus on the evidentiary basis for any particular finding of the District Court. It appeared to make an independent examination of the record and arrive at its own conclusion contrary to that of the District Court. Likewise, in dealing with the genesis of the seniority system and whether or not the negotiation or maintenance of the system was tainted with racial discrimination, the Court of Appeals, while identifying what it thought was legal error in failing to consider the racial practices and intentions of IAM, did not otherwise overturn any of the District Court's findings as clearly erroneous. 22 See 5A J. Moore & J. Lucas, Moore's Federal Practice § 52.06[2] (1982) ("Where the trial court fails to make findings, or to find on a material issue, and an appeal is taken, the appellate court will normally vacate the judgment and remand the action for appropriate findings to be made"); Rule v. International Assn. of Bridge Workers, 568 F.2d 558, 568 (CA8 1978); Chicano Police Officer's Assn. v. Stover, 552 F.2d 918, 921 (CA10 1977); O'Neal v. Gresham, 519 F.2d 803, 805 (CA4 1975); Burch v. International Assn. of Machinists & Aerospace Workers, AFL-CIO, 433 F.2d 561 (CA5 1970); General Electric Credit Corp. v. Robbins, 414 F.2d 208 (CA8 1969). 23 IAM's discriminatory motivation, if it existed, cannot be imputed to USW. It is relevant only to the extent that it may shed some light on the purpose of USW or the Company in creating and maintaining the separate seniority system at issue in these cases. A discriminatory intent on the part of IAM, therefore, does not control the outcome of these cases. Neither does the fact, if true, that USW acquiesced in racially discriminatory conduct on the part of IAM. Such acquiescence is not the equivalent of a discriminatory purpose on the part of USW. 1 As the majority acknowledges, ante, at 284-285, n. 14, this Court stated in United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948), that a finding of fact is clearly erroneous if "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed" (emphasis added). 2 Contrary to the majority's suggestion, ante, at 279, n.8, I find nothing in the Fifth Circuit's decision in James v. Stockham Valves & Fittings Co. to imply that these factors constitute the only relevant criteria for determining discriminatory intent. 3 This conclusion would seem to be compelled since, as the majority notes, the James factors are nothing more than a summary of the criteria examined by this Court in Teamsters, 431 U.S., at 355-356, 97 S.Ct., at 1864-1865. 4 As the majority indicates in a footnote, ante, at 292, n. 23, the discriminatory motive of the IAM is "relevant . . . to the extent that it may shed . . . light on the purpose of USW or the Company in creating and maintaining the separate seniority system at issue in this case." I do not read the Court of Appeals opinion in this action as holding anything more than that if the USW participated in establishing a system that was designed for the purpose of perpetuating past discrimination, the third James factor would be satisfied. Given that the IAM is a party to this litigation, its participation in the creation of the seniority system can hardly be deemed irrelevant. 5 It is therefore irrelevant that the Court of Appeals did not specifically hold that the District Court's other factual findings were clearly erroneous. 6 Only two witnesses testified during the brief hearing that the District Court conducted on the question whether the seniority system at Pullman-Standard was immune under § 703(h). Both of these witnesses were long-time Negro employees of Pullman-Standard who testified on behalf of respondents concerning racial segregation at the plant and by the USW. There is no indication in the District Court's opinion that it relied upon the testimony of these two witnesses in concluding that the system was bona fide within the meaning of § 703(h). The remainder of the record before the District Court consisted entirely of 139 exhibits submitted by respondents, the company, and the unions concerning the development and maintenance of the seniority system from 1940 through the 1970's. 7 This is not to say that the clearly-erroneous rule does not apply to "document" cases. See United States v. Singer Manufacturing Co., 374 U.S. 174, 194, n. 9, 83 S.Ct. 1773, 1783, n. 9, 10 L.Ed.2d 823 (1963). However, "when the decision of the court below rests upon an incorrect reading of an undisputed document, [the appellate] court is free to substitute its own reading of the document." Eutectic Corp. v. Metco, Inc., 579 F.2d 1, 5 (CA2 1978). See also McKensie v. Sea Land Service, 551 F.2d 91 (CA5 1977); Best Medium Pub. Co. v. National Insider, Inc., 385 F.2d 384 (CA7 1967), cert. denied, 390 U.S. 955, 88 S.Ct. 1052, 19 L.Ed.2d 1150 (1968); United States ex rel. Binion v. O'Brien, 273 F.2d 495 (CA3 1959), cert. denied, 363 U.S. 812, 80 S.Ct. 1249, 4 L.Ed.2d 1154 (1960). 8 Although the majority is correct in stating that the Court of Appeals did not "refer to or expressly apply the clearly-erroneous standard" in reaching this conclusion, ante, at 282 (emphasis added), the appellate court's adherence to the requirements of Rule 52(a) is nevertheless apparent from the following statement: "The record evidence indicates that a significant number of one-race departments were established upon unionization at Pullman-Standard, and during the next twenty five years, one-race departments were carved out of previously mixed departments. The establishment and maintenance of the segregated departments appear to be based on no other considerations than the objective to separate the races." 624 F.2d, at 531 (emphasis added). In my opinion, this statement is sufficient to satisfy the requirements of Rule 52(a), particularly in light of the Court of Appeals' general acknowledgement that it was bound by the clearly-erroneous rule. See supra, at 296-297 9 Whether or not the Court of Appeals expressly ruled on the fourth James factor is irrelevant. As the Court of Appeals clearly stated, its conclusion was based on "the totality of the facts and circumstances surrounding the creation and continuance of the departmental system at Pullman-Standard." 624 F.2d, at 533; see also id., at 532 ("It is crystal clear that considerations of race permeated the negotiation and the adoption of the seniority system in 1941 and subsequent negotiations thereafter"), and id., at 533 ("We consider significant in our decision . . . conditions of racial discrimination which affected the negotiation and renegotiation of the system. . ."). Even assuming that the District Court was correct in concluding that the system had been maintained free of any illegal purpose, the Court of Appeals was entitled to conclude that discriminatory intent had been demonstrated on the basis of other relevant evidence.

12

456 U.S. 305 102 S.Ct. 1798 72 L.Ed.2d 91 Caspar W. WEINBERGER, Secretary of Defense, et al., Petitioners,v.Carlos ROMERO-BARCELO et al. No. 80-1990. Argued Feb. 23, 1982. Decided April 27, 1982. Syllabus The Navy, in the course of using an island off the Puerto Rico coast for air-to-ground weapons training, has discharged ordnance into the waters surrounding the island, when pilots missed land targets and accidentally bombed the waters or intentionally bombed water targets. Respondents sued in Federal District Court to enjoin the Navy's operations, alleging violation of, inter alia, the Federal Water Pollution Control Act (FWPCA). The District Court, while finding that the discharges have not harmed the quality of the water, held that the Navy had violated the FWPCA by discharging ordnance into the waters without first obtaining a permit from the Environmental Protection Agency, and ordered the Navy to apply for a permit but refused to enjoin the operations pending consideration of the permit application. The Court of Appeals vacated and remanded with instructions to order the Navy to cease the violation until it obtained a permit, holding that the FWPCA withdrew the District Court's equitable discretion to order relief other than an immediate prohibitory injunction. Held: The FWPCA does not foreclose completely the exercise of a district court's discretion, but, rather than requiring the court to issue an injunction for any and all statutory violations, permits the court to order relief it considers necessary to secure prompt compliance with the Act, which relief can include, but is not limited to, an order of immediate cessation. Pp. 311-320. (a) The grant of jurisdiction to a court to ensure compliance with a statute does not suggest an absolute duty to grant injunctive relief under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law. Pp. 311-313. (b) Here, an injunction is not the only means of ensuring compliance, T. V. A. v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117, distinguished, since the FWPCA provides, for example, for fines and criminal penalties. While the FWPCA's purpose in preserving the integrity of the Nation's waters is to be achieved by compliance with the Act, including compliance with the permit requirements, in this case the discharge of the ordnance has not polluted the waters, and, although the District Court refused to enjoin the discharge, it neither ignored the statutory violation nor undercut the purpose and function of the permit system. The FWPCA's prohibition against discharge of pollutants can be overcome by the very permit the Navy was ordered to seek. Pp. 313-316. (c) The statutory scheme as a whole contemplates the exercise of discretion and balancing of equities, and suggests that Congress did not intend to deny courts the discretion to rely on remedies other than an immediate prohibitory injunction. Pp. 316-318. (d) The provision of the FWPCA permitting the President to exempt federal facilities from compliance with the permit requirements does not indicate congressional intent to limit the court's discretion. The Act permits the exercise of a court's equitable discretion, whether the source of pollution is a private party or a federal agency, to order relief that will achieve compliance with the Act, whereas the exemption permits non-compliance by federal agencies in extraordinary circumstances. Pp. 318-319. (e) Nor does the legislative history suggest that Congress intended to deny courts their traditional equitable discretion. P.319 643 F.2d 835 (1st Cir.), reversed and remanded. Elinor H. Stillman, Washington, D. C., for petitioners. John A. Hodges, Washington, D. C., for respondents. 1 WHITE, Justice. 2 The issue in this case is whether the Federal Water Pollution Control Act (FWPCA or Act), 86 Stat. 816, as amended, 33 U.S.C. § 1251 et seq. (1976 ed. and Supp.IV), requires a district court to enjoin immediately all discharges of pollutants that do not comply with the Act's permit requirements or whether the district court retains discretion to order other relief to achieve compliance. The Court of Appeals for the First Circuit held that the Act withdrew the courts' equitable discretion. Romero-Barcelo v. Brown, 643 F.2d 835 (1981). We reverse. 3 * For many years, the Navy has used Vieques Island, a small island off the Puerto Rico coast, for weapons training. Currently all Atlantic Fleet vessels assigned to the Mediterranean Sea and the Indian Ocean are required to complete their training at Vieques because it permits a full range of exercises under conditions similar to combat. During air-to-ground training, however, pilots sometimes miss land-based targets, and ordnance falls into the sea. That is, accidental bombings of the navigable waters and, occasionally, intentional bombings of water targets occur. The District Court found that these discharges have not harmed the quality of the water. 4 In 1978, respondents, who include the Governor of Puerto Rico and residents of the island, sued to enjoin the Navy's operations on the island. Their complaint alleged violations of numerous federal environmental statutes and various other Acts.1 After an extensive hearing, the District Court found that under the explicit terms of the Act, the Navy had violated the Act by discharging ordnance into the waters surrounding the island without first obtaining a permit from the Environmental Protection Agency (EPA).2 Romero-Barcelo v. Brown, 478 F.Supp. 646 (P.R.1979). 5 Under the FWPCA, the "discharge of any pollutant" requires a National Pollutant Discharge Elimination System (NPDES) permit. 33 U.S.C. §§ 1311(a), 1323(a) (1976 ed. and Supp.IV). The term "discharge of any pollutant" is defined as 6 "any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft." 33 U.S.C. § 1362(12) (emphasis added). Pollutant, in turn, means 7 "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. . . ." 33 U.S.C. § 1362(6) (emphasis added). And, under the Act, a "point source" is 8 "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft from which pollutants are or may be discharged. . . ." 33 U.S.C. § 1362(14) (1976 ed., Supp.IV) (emphasis added). 9 Under the FWPCA, the EPA may not issue an NPDES permit without state certification that the permit conforms to state water quality standards. A State has the authority to deny certification of the permit application or attach conditions to the final permit. 33 U.S.C. § 1341. 10 As the District Court construed the FWPCA, the release of ordnance from aircraft or from ships into navigable waters is a discharge of pollutants, even though the EPA, which administers the Act, had not promulgated any regulations setting effluent levels or providing for the issuance of an NPDES permit for this category of pollutants.3 Recognizing that violations of the Act "must be cured," 478 F.Supp., at 707, the District Court ordered the Navy to apply for an NPDES permit. It refused, however, to enjoin Navy operations pending consideration of the permit application. It explained that the Navy's "technical violations" were not causing any "appreciable harm" to the environment.4 Id., at 706. Moreover, because of the importance of the island as a training center, "the granting of the injunctive relief sought would cause grievous, and perhaps irreparable harm, not only to Defendant Navy, but to the general welfare of this Nation."5 Id., at 707. The District Court concluded that an injunction was not necessary to ensure suitably prompt compliance by the Navy. To support this conclusion, it emphasized an equity court's traditionally broad discretion in deciding appropriate relief and quoted from the classic description of injunctive relief in Hecht Co. v. Bowles, 321 U.S. 321, 329-330, 64 S.Ct. 587, 591-592, 88 L.Ed. 754 (1944): "The historic injunctive process was designed to deter, not to punish." 11 The Court of Appeals for the First Circuit vacated the District Court's order and remanded with instructions that the court order the Navy to cease the violation until it obtained a permit. 643 F.2d 835 (1981). Relying on TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978), in which this Court held that an imminent violation of the Endangered Species Act required injunctive relief, the Court of Appeals concluded that the District Court erred in undertaking a traditional balancing of the parties' competing interests. "Whether or not the Navy's activities in fact harm the coastal waters, it has an absolute statutory obligation to stop any discharges of pollutants until the permit procedure has been followed and the Administrator of the Environmental Protection Agency, upon review of the evidence, has granted a permit." 643 F.2d, at 861. The court suggested that if the order would interfere significantly with military preparedness, the Navy should request that the President grant it an exemption from the requirements in the interest of national security."6 12 Because this case posed an important question regarding the power of the federal courts to grant or withhold equitable relief for violations of the FWPCA, we granted certiorari, 454 U.S. 813, 102 S.Ct. 88, 70 L.Ed.2d 81 (1981). We now reverse. II 13 It goes without saying that an injunction is an equitable remedy. It "is not a remedy which issues as of course," Harrisonville v. W.S. Dickey Clay Mfg. Co., 289 U.S. 334, 337-338, 53 S.Ct. 602, 603, 77 L.Ed. 1208 (1933), or "to restrain an act the injurious consequences of which are merely trifling." Consolidated Canal Co. v. Mesa Canal Co., 177 U.S. 296, 302, 20 S.Ct. 628, 630, 44 L.Ed. 777 (1900). An injunction should issue only where the intervention of a court of equity "is essential in order effectually to protect property rights against injuries otherwise irremediable." Cavanaugh v. Looney, 248 U.S. 453, 456, 39 S.Ct. 142, 143, 63 L.Ed. 354 (1919). The Court has repeatedly held that the basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies. Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 61, 95 S.Ct. 2069, 2077, 45 L.Ed.2d 12 (1975); Sampson v. Murray, 415 U.S. 61, 88, 94 S.Ct. 937, 951, 39 L.Ed.2d 166 (1974); Beacon Theaters, Inc. v. Westover, 359 U.S. 500, 506-507, 79 S.Ct. 948, 954-955, 3 L.Ed.2d 988 (1959); Hecht Co. v. Bowles, supra, at 329, 64 S.Ct., at 591. 14 Where plaintiff and defendant present competing claims of injury, the traditional function of equity has been to arrive at a "nice adjustment and reconciliation" between the competing claims, Hecht Co. v. Bowles, supra, at 329, 64 S.Ct., at 592. In such cases, the court "balances the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction." Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 675, 88 L.Ed. 834 (1944). "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." Hecht Co. v. Bowles, supra, 321 U.S., at 329, 64 S.Ct., at 592. 15 In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction. Railroad Comm'n. v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L.Ed. 971 (1941). Thus, the Court has noted that "[t]he award of an interlocutory injunction by courts of equity has never been regarded as strictly a matter of right, even though irreparable injury may otherwise result to the plaintiff," and that "where an injunction is asked which will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff." Yakus v. United States, supra, 321 U.S., at 440, 64 S.Ct., at 675 (footnote omitted). The grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law. TVA v. Hill, 437 U.S., at 193, 98 S.Ct., at 2301; Hecht Co. v. Bowles, 321 U.S., at 329, 64 S.Ct., at 591. 16 These commonplace considerations applicable to cases in which injunctions are sought in the federal courts reflect a "practice with a background of several hundred years of history," Hecht Co. v. Bowles, supra, at 329, 64 S.Ct., at 591-92, a practice of which Congress is assuredly well aware. Of course, Congress may intervene and guide or control the exercise of the courts' discretion, but we do not lightly assume that Congress has intended to depart from established principles. Hecht Co. v. Bowles, supra, at 329, 64 S.Ct., at 591. As the Court said in Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332 (1946): 17 "Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. 'The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.' Brown v. Swann, 10 Pet. 497, 503 [9 L.Ed. 508] . . ." 18 In TVA v. Hill, we held that Congress had foreclosed the exercise of the usual discretion possessed by a court of equity. There, we thought that "[o]ne would be hard pressed to find a statutory provision whose terms were any plainer" than that before us. 437 U.S., at 173, 98 S.Ct., at 2291. The statute involved, the Endangered Species Act, 87 Stat. 884, 16 U.S.C. § 1531 et seq., required the District Court to enjoin completion of the Tellico Dam in order to preserve the snail darter, a species of perch. The purpose and language of the statute under consideration in Hill, not the bare fact of a statutory violation, compelled that conclusion. Section 7 of the Act, 16 U.S.C. § 1536, requires federal agencies to "insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of [any] endangered species . . . or result in the destruction or modification of habitat of such species which is determined . . . to be critical." The statute thus contains a flat ban on the destruction of critical habitats. 19 It was conceded in Hill that completion of the dam would eliminate an endangered species by destroying its critical habitat. Refusal to enjoin the action would have ignored the "explicit provisions of the Endangered Species Act." 437 U.S., at 173, 98 S.Ct., at 2291. Congress, it appeared to us, had chosen the snail darter over the dam. The purpose and language of the statute limited the remedies available to the District Court; only an injunction could vindicate the objectives of the Act. 20 That is not the case here. An injunction is not the only means of ensuring compliance. The FWPCA itself, for example, provides for fines and criminal penalties. 33 U.S.C. §§ 1319(c) and (d). Respondents suggest that failure to enjoin the Navy will undermine the integrity of the permit process by allowing the statutory violation to continue. The integrity of the Nation's waters, however, not the permit process, is the purpose of the FWPCA.7 As Congress explained, the objective of the FWPCA is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). 21 This purpose is to be achieved by compliance with the Act, including compliance with the permit requirements.8 Here, however, the discharge of ordnance had not polluted the waters, and, although the District Court declined to enjoin the discharges, it neither ignored the statutory violation nor undercut the purpose and function of the permit system. The court ordered the Navy to apply for a permit.9 It temporarily, not permanently, allowed the Navy to continue its activities without a permit. 22 In Hill, we also noted that none of the limited "hardship exemptions" of the Endangered Species Act would "even remotely apply to the Tellico Project." 437 U.S., at 188, 98 S.Ct., at 2298. The prohibition of the FWPCA against discharge of pollutants, in contrast, can be overcome by the very permit the Navy was ordered to seek.10 The Senate Report to the 1972 Amendments explains that the permit program would be enacted because "the Committee recognizes the impracticality of any effort to halt all pollution immediately." S.Rep.No.92-414, p. 43 (1971), U.S.Code Cong. & Admin.News 1972, p. 3709. That the scheme as a whole contemplates the exercise of discretion and balancing of equities militates against the conclusion that Congress intended to deny courts their traditional equitable discretion in enforcing the statute. 23 Other aspects of the statutory scheme also suggest that Congress did not intend to deny courts the discretion to rely on remedies other than an immediate prohibitory injunction. Although the ultimate objective of the FWPCA is to eliminate all discharges of pollutants into the navigable waters by 1985, the statute sets forth a scheme of phased compliance. As enacted, it called for the achievement of the "best practicable control technology currently available" by July 1, 1977, and the "best available technology economically achievable" by July 1, 1983. 33 U.S.C. § 1311(b). This scheme of phased compliance further suggests that this is a statute in which Congress envisioned, rather than curtailed, the exercise of discretion.11 24 The FWPCA directs the Administrator of the EPA to seek an injunction to restrain immediately discharges of pollutants he finds to be presenting "an imminent and substantial endangerment to the health of persons or to the welfare of persons." 33 U.S.C. § 1364(a) (1976 ed., Supp.IV). This rule of immediate cessation, however, is limited to the indicated class of violations. For other kinds of violations, the FWPCA authorizes the Administrator of the EPA "to commence a civil action for appropriate relief, including a permanent or temporary injunction, for any violation for which he is authorized to issue a compliance order. . . ." 33 U.S.C. § 1319(b).12 The provision makes clear that Congress did not anticipate that all discharges would be immediately enjoined. Consistent with this view, the administrative practice has not been to request immediate cessation orders. "Rather, enforcement actions typically result, by consent or otherwise, in a remedial order setting out a detailed schedule of compliance designed to cure the identified violation of the Act." Brief for Petitioners 17. See Milwaukee v. Illinois, 451 U.S. 304, 320-322, 101 S.Ct. 1784, 1794-1795, 68 L.Ed.2d 114 (1981). Here, again, the statutory scheme contemplates equitable consideration. 25 Both the Court of Appeals and respondents attach particular weight to the provision of the FWPCA permitting the President to exempt federal facilities from compliance with the permit requirements. 33 U.S.C. § 1323(a) (1976 ed., Supp.IV).13 They suggest that this provision indicates congressional intent to limit the court's discretion. According to respondents, the exemption provision evidences Congress' determination that only paramount national interests justify failure to comply and that only the President should make this judgment. 26 We do not construe the provision so broadly. We read the FWPCA as permitting the exercise of a court's equitable discretion, whether the source of pollution is a private party or a federal agency, to order relief that will achieve compliance with the Act. The exemption serves a different and complementary purpose, that of permitting noncompliance by federal agencies in extraordinary circumstances. Executive Order No. 12088, 3 CFR 243 (1979), which implements the exemption authority, requires the federal agency requesting such an exemption to certify that it cannot meet the applicable pollution standards. "Exemptions are granted by the President only if the conflict between pollution control standards and crucial federal activities cannot be resolved through the development of a practicable remedial program." Brief for Petitioners 26, n. 30. 27 Should the Navy receive a permit here, there would be no need to invoke the machinery of the Presidential exemption. If not, this course remains open. The exemption provision would enable the President, believing paramount national interests so require, to authorize discharges which the District Court has enjoined. Reading the statute to permit the exercise of a court's equitable discretion in no way eliminates the role of the exemption provision in the statutory scheme. 28 Like the language and structure of the Act, the legislative history does not suggest that Congress intended to deny courts their traditional equitable discretion. Congress passed the 1972 Amendments because it recognized that "the national effort to abate and control water pollution has been inadequate in every vital aspect." S.Rep.No.92-414, p. 7 (1971), U.S.Code Cong. & Admin.News p. 3674. The past failings included enforcement efforts under the Rivers and Harbors Appropriation Act of 1899 (Refuse Act), 33 U.S.C. § 401 et seq. The "major purpose" of the 1972 Amendments was "to establish a comprehensive long-range policy for the elimination of water pollution." S.Rep.No.92-414, supra, at 95, U.S.Code Cong. & Admin.News at 3758. The permit system was the key to that policy. "The Amendments established a new system of regulation under which it is illegal for anyone to discharge pollutants into the Nation's waters except pursuant to a permit." Milwaukee v. Illinois, supra, at 310-311, 101 S.Ct., at 1788-1789; see generally EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). Nonetheless, "[i]n writing the enforcement procedures involving the Federal Government the Committee drew extensively . . . upon the existing enforcement provisions of the Refuse Act of 1899." S.Rep.No.92-414,supra, at 63, U.S.Code Cong. & Admin.News p. 3730. Violations of the Refuse Act have not automatically led courts to issue injunctions. See Reserve Mining Co. v. EPA, 514 F.2d 492, 535-538 (CA8 1975); United States v. Rohm & Haas Co., 500 F.2d 167, 175 (CA5 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1352, 43 L.Ed.2d 439 (1975); United States v. Kennebec Log Driving Co., 491 F.2d 562, 571 (CA1 1973), on remand, 399 F.Supp. 754, 759-760 (Me.1975). III 29 This Court explained in Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754 (1944), that a major departure from the long tradition of equity practice should not be lightly implied. As we did there, we construe the statute at issue "in favor of that interpretation which affords a full opportunity for equity courts to treat enforcement proceedings . . . in accordance with their traditional practices, as conditioned by the necessities of the public interest which Congress has sought to protect." Id., at 330, 64 S.Ct., at 592. We do not read the FWPCA as foreclosing completely the exercise of the court's discretion. Rather than requiring a district court to issue an injunction for any and all statutory violations, the FWPCA permits the district court to order that relief it considers necessary to secure prompt compliance with the Act. That relief can include, but is not limited to, an order of immediate cessation. 30 The exercise of equitable discretion, which must include the ability to deny as well as grant injunctive relief, can fully protect the range of public interests at issue at this stage in the proceedings. The District Court did not face a situation in which a permit would very likely not issue, and the requirements and objective of the statute could therefore not be vindicated if discharges were permitted to continue. Should it become clear that no permit will be issued and that compliance with the FWPCA will not be forthcoming, the statutory scheme and purpose would require the court to reconsider the balance it has struck. 31 Because Congress, in enacting the FWPCA, has not foreclosed the exercise of equitable discretion, the proper standard for appellate review is whether the District Court abused its discretion in denying an immediate cessation order while the Navy applied for a permit. We reverse and remand to the Court of Appeals for proceedings consistent with this opinion. 32 It is so ordered. Justice POWELL, concurring. 33 I join the opinion of the Court. In my view, however, the record clearly establishes that the District Court in this case did not abuse its discretion by refusing to enjoin the immediate cessation of all discharges. Finding that the District Court acted well within the equitable discretion left to it under the Federal Water Pollution Control Act (FWPCA), I would remand the case to the Court of Appeals with instructions that the decision of the District Court should be affirmed.* 34 The propriety of this disposition is emphasized by the dissenting opinion of Justice STEVENS, post, at 322. I agree with his view that Congress may limit a court's equitable discretion in granting remedies under a particular statute, and that some statutes may constrain discretion more narrowly than others. I stand with the Court, however, in finding no indication that Congress intended to limit the court's equitable discretion under the FWPCA in the manner suggested by Justice STEVENS. As the Court's remand order might be thought to leave open whether the District Court in this case acted within its range of permissible discretion under the FWPCA, it would promote both clarity and economy for us to hold now that the District Court did not abuse its discretion and that its decision should be reinstated. 35 STEVENS, Justice, dissenting. 36 The appropriate remedy for the violation of a federal statute depends primarily on the terms of the statute and the character of the violation. Unless Congress specifically commands a particular form of relief, the question of remedy remains subject to a court's equitable discretion.1 Because the Federal Water Pollution Control Act does not specifically command the federal courts to issue an injunction every time an unpermitted discharge of a pollutant occurs, the Court today is obviously correct in asserting that such injunctions should not issue "automatically" or "mechanically" in every case. It is nevertheless equally clear that by enacting the 1972 Amendments to the FWPCA Congress channeled the discretion of the federal judiciary much more narrowly than the Court's rather glib opinion suggests. Indeed, although there may well be situations in which the failure to obtain an NPDES permit would not require immediate cessation of all discharges, I am convinced that Congress has circumscribed the district courts' discretion on the question of remedy so narrowly that a general rule of immediate cessation must be applied in all but a narrow category of cases. The Court of Appeals was quite correct in holding that this case does not present the kind of exceptional situation that justifies a departure from the general rule. 37 The Court's mischaracterization of the Court of Appeals' holding is the premise for its essay on equitable discretion. This essay is analytically flawed because it overlooks the limitations on equitable discretion that apply in cases in which public interests are implicated and the defendant's violation of the law is ongoing. Of greater importance, the Court's opinion grants an open-ended license to federal judges to carve gaping holes in a reticulated statutory scheme designed by Congress to protect a precious natural resource from the consequences of ad hoc judgments about specific discharges of pollutants. 38 * Contrary to the impression created by the Court's opinion, the Court of Appeals did not hold that the District Court was under an absolute duty to require compliance with the FWPCA "under any and all circumstances," ante, at 313, or that it was "mechanically obligated to grant an injunction for every violation of law," ibid. The only "absolute duty" that the Court of Appeals mentioned was the Navy's duty to obtain a permit before discharging pollutants into the waters off Vieques Island.2 In light of the Court's opinion the point is worth repeating—the Navy, like anyone else,3 must obey the law. 39 The Court of Appeals did not hold that the District Court had no discretion in formulating remedies for statutory violations. It merely "conclude[d] that the district court erred in undertaking a traditional balancing of the parties' competing interests." Romero-Barcelo v. Brown, 643 F.2d 835, 861 (CA1 1981). The District Court was not free to disregard the "congressional ordering of priorities" and "the judiciary's 'responsibility to protect the integrity of the . . . process mandated by Congress.' " Ibid. (quoting Jones v. Lynn, 477 F.2d 885, 892 (CA1 1973)). The Court of Appeals distinguished a statutory violation that could be deemed merely "technical" from the Navy's "[utter disregard of] the statutory mandate." 643 F.2d, at 861-862. It then pointed out that an order prohibiting any discharge of ordnance into the coastal waters off Vieques until an NPDES permit was obtained would not significantly affect the Navy's training operations because most, if not all, of the Navy's targets were land-based. Id., at 862, n. 55. Finally, it noted that the statute authorized the Navy to obtain an exemption from the President if an injunction would have a significant effect on national security. Id., at 862; see 33 U.S.C. § 1323(a) (1976 ed., Supp.IV). 40 Under these circumstances—the statutory violation is blatant and not merely technical, and the Navy's predicament was foreseen and accommodated by Congress—the Court of Appeals essentially held that the District Court retained no discretion to deny an injunction. The discretion exercised by the District Court in this case was wholly at odds with the intent of Congress in enacting the FWPCA. In essence, the District Court's remedy was a judicial permit exempting the Navy's operations in Vieques from the statute until such time as it could obtain a permit from the Environmental Protection Agency or a statutory exemption from the President. The two principal bases for the temporary judicial permit were matters that Congress did not commit to judicial discretion. First, the District Court was persuaded that the pollution was not harming the quality of the coastal waters, see Romero-Barcelo v. Brown, 478 F.Supp. 646, 706-707 (PR 1979); and second, the court was concerned that compliance with the Act might adversely affect national security, see id., at 707-708. The Court of Appeals correctly noted that the first consideration is the business of the EPA4 and the second is the business of the President.5 41 The Court unfairly uses the Court of Appeals' opinion in this case as a springboard for a lecture on the principles of equitable remedies. The Court of Appeals' reasoning was correct in all respects. It recognized that the statute categorically prohibits discharges of pollutants without a permit. Unlike the Court, see ante, at 314-315, it recognized that the requested injunction was the only remedy that would bring the Navy into compliance with the statute on Congress' timetable.6 It then demonstrated that none of the reasons offered by the District Court for refusing injunctive relief was consistent with the statute or was compelling under the circumstances. The position of the Court of Appeals in effect was that the federal courts' equitable discretion is constrained by a strong presumption in favor of enforcing the law as Congress has written it. By reversing, the Court casts doubt on the validity of that position. This doubt is especially dangerous in the environmental area, where the temptations to delay compliance are already substantial.7 II 42 Our cases concerning equitable remedies have repeatedly identified two critical distinctions that the Court simply ignores today. The first is the distinction between cases in which only private interests are involved and those in which a requested injunction will implicate a public interest. Second, within the category of public interest cases, those cases in which there is no danger that a past violation of law will recur have always been treated differently from those in which an existing violation is certain to continue. 43 Yakus v. United States, 321 U.S. 414, 441, 64 S.Ct. 660, 675, 88 L.Ed. 834, illustrates the first distinction. The Court there held that Congress constitutionally could preclude a private party from obtaining an injunction against enforcement of federal price control regulations pending an adjudication of their validity. In any balancing process, the Court explained, special deference must be given to the public interest: "Even in suits in which only private interests are involved the award is a matter of sound judicial discretion, in the exercise of which the court balances the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction. . . . 44 "But where an injunction is asked which will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff." Id., at 440, 64 S.Ct., at 675 (footnote omitted). 45 In that case, the public interest, reflected in an act of Congress, was in opposition to the availability of injunctive relief. The Court stated, however, that the public interest factor would have the same special weight if it favored the granting of an injunction: 46 "This is but another application of the principle, declared in Virginia Ry. Co. v. System Federation, 300 U.S. 515, 552, [57 S.Ct. 592, 601, 81 L.Ed. 789], that 'Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.' " Id., at 441, 64 S.Ct., at 675. 47 Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754, which the Court repeatedly cites, did involve an attempt to obtain an injunction against future violations of a federal statute. That case fell into the category of cases in which a past violation of law had been found and the question was whether an injunction should issue to prevent future violations. Cf. United States v. W. T. Grant Co., 345 U.S. 629, 633-636, 73 S.Ct. 894, 897-899, 97 L.Ed. 1303; United States v. Oregon Medical Society, 343 U.S. 326, 332-334, 72 S.Ct. 690, 695-696, 96 L.Ed. 978. Because the record established that the past violations were inadvertent, that they had been promptly terminated, and that the defendant had taken vigorous and adequate steps to prevent any recurrence, the Court held that the District Court had discretion to deny injunctive relief. But in reaching that conclusion, the Court made it clear that judicial discretion "must be exercised in light of the large objectives of the Act. For the standards of the public interest, not the requirements of private litigation, measure the propriety and need for injunctive relief in these cases." 321 U.S., at 331, 72 S.Ct., at 694. Indeed, the Court emphasized that any exercise of discretion "should reflect an acute awareness of the Congressional admonition" in the statute at issue. Ibid. 48 In contrast to the decision in Hecht, today the Court pays mere lipservice to the statutory mandate and attaches no weight to the fact that the Navy's violation of law has not been corrected.8 The Court cites no precedent for its holding that an ongoing deliberate violation of a federal statute should be treated like any garden-variety private nuisance action in which the chancellor has the widest discretion in fashioning relief.9 49 Our prior cases involving the appropriate remedy for an ongoing violation of federal law establish a much more stringent test than the Court applies today. Thus, in United States v. City and County of San Francisco, 310 U.S. 16, 60 S.Ct. 749, 84 L.Ed. 1050, a case in which the Government claimed that the city's disposition of electric power was prohibited by an Act of Congress, the Court held that "this case does not call for a balancing of equities or for the invocation of the generalities of judicial maxims in order to determine whether an injunction should have issued." Id., at 30, 60 S.Ct., at 757. "The equitable doctrines relied on do not militate against the capacity of a court of equity as a proper forum in which to make a declared policy of Congress effective." Id., at 31, 60 S.Ct., at 757. An injunction to prohibit continued violation of that policy "is both appropriate and necessary." Ibid.10 50 In Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280, the Court plainly stated that an equitable remedy for the violation of a federal statute was neither automatic on the one hand, nor simply a matter of balancing the equities on the other.11 Albemarle holds that the district court's remedial decision must be measured against the purposes that inform the Act of Congress that has been violated. Id., at 417, 95 S.Ct., at 2371. III 51 The Court's discussion of the FWPCA creates the impression that Congress did not intend any significant change in the enforcement provisions of the Rivers and Harbors Appropriation Act of 1899. See ante, at 319. The Court goes so far as to suggest that the FWPCA is little more than a codification of the common law of nuisance.12 The contrast between this casual attitude toward the FWPCA and the Court's writing in Milwaukee v. Illinois, 451 U.S. 304, 101 S.Ct. 1784, 68 L.Ed.2d 114, is stark. In that case the Court refused to allow federal judges to supplement the statutory enforcement scheme by enjoining a nuisance, whereas in this case the question is whether a federal judge may create a loophole in the scheme by refusing to enjoin a violation. Why a different standard should be used to define the scope of judicial discretion in these two situations is not explained. 52 In Milwaukee v. Illinois the Court described the FWPCA in these terms: 53 "The statutory scheme established by Congress provides a forum for the pursuit of such claims before expert agencies by means of the permit-granting process. It would be quite inconsistent with this scheme if federal courts were in effect to 'write their own ticket' under the guise of federal common law after permits have already been issued and permittees have been planning and operating in reliance on them." Id., at 326, 101 S.Ct., at 1797. 54 Ironically, today the Court holds that federal district courts may in effect "write their own ticket" under the guise of federal common law before permits have been issued. 55 The Court distinguishes TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117, on the ground that the Endangered Species Act contained a "flat ban" on the destruction of critical habitats. Ante, at 314. But the statute involved in this case also contains a flat ban against discharges of pollutants into coastal waters without a permit.13 Surely the congressional directive to protect the Nation's waters from gradual but possibly irreversible contamination is no less clear than the command to protect the snail darter.14 To assume that Congress has placed a greater value on the protection of vanishing forms of animal life than on the protection of our water resources is to ignore the text, the legislative history,15 and the previously consistent interpretation of this statute.16 56 It is true that in TVA v. Hill there was no room for compromise between the federal project and the statutory objective to preserve an endangered species; either the snail darter or the completion of the Tellico Dam had to be sacrificed. In the FWPCA, the Court tells us, the congressional objective is to protect the integrity of the Nation's waters, not to protect the integrity of the permit process. Ante, at 314. Therefore, the Court continues, ante, at 315, a federal court may compromise the process chosen by Congress to protect our waters as long as the court is content that the waters are not actually being harmed by the particular discharge of pollutants. 57 On analysis, however, this reasoning does not distinguish the two cases. Courts are in no better position to decide whether the permit process is necessary to achieve the objectives of the FWPCA than they are to decide whether the destruction of the snail darter is an acceptable cost of completing the Tellico Dam. Congress has made both decisions, and there is nothing in the respective statutes or legislative histories to suggest that Congress invited the federal courts to second-guess the former decision any more than the latter. 58 A disregard of the respective roles of the three branches of government also tarnishes the Court's other principal argument in favor of expansive equitable discretion in this area.17 The Court points out that Congress intended to halt water pollution gradually, not immediately, and that "the scheme as a whole contemplates the exercise of discretion and balancing of equities." Ante, at 316. In the Court's words, Congress enacted a "scheme of phased compliance." Ibid. Equitable discretion in enforcing the statute, the Court states, is therefore consistent with the statutory scheme. 59 The Court's sophistry is premised on a gross misunderstanding of the statutory scheme. Naturally, in 1972 Congress did not expect dischargers to end pollution immediately.18 Rather, it entrusted to expert administrative agencies the task of establishing timetables by which dischargers could reach that ultimate goal. These timetables are determined by the agencies and included in the NPDES permits; the conditions in the permits constitute the terms by which compliance with the statute is measured.19 Quite obviously, then, the requirement that each discharger subject itself to the permit process is crucial to the operation of the "scheme of phased compliance." By requiring each discharger to obtain a permit before continuing its discharges of pollutants, Congress demonstrated an intolerance for delay in compliance with the statute. It is also obvious that the "exercise of discretion and balancing of equities" were tasks delegated by Congress to expert agencies, not to federal courts, yet the Court simply ignores the difference. IV 60 The decision in TVA v. Hill did not depend on any peculiar or unique statutory language. Nor did it rest on any special interest in snail darters. The decision reflected a profound respect for the law and the proper allocation of lawmaking responsibilities in our Government.20 There we refused to sit as a committee of review. Today the Court authorizes free-thinking federal judges to do just that. Instead of requiring adherence to carefully integrated statutory procedures that assign to nonjudicial decisionmakers the responsibilities for evaluating potential harm to our water supply as well as potential harm to our national security, the Court unnecessarily and casually substitutes the chancellor's clumsy foot for the rule of law. 61 I respectfully dissent. 1 The complaint charged the Navy with violations of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (1976 ed. and Supp.IV); the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (1976 ed. and Supp.IV); the Clean Air Act Amendments of 1977, 42 U.S.C. § 7401 et seq. (1976 ed., Supp.IV); the Noise Control Act of 1972, 42 U.S.C. § 4901 et seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq.; the Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq.; the National Historic Preservation Act of 1966, 16 U.S.C. § 470 et seq.; the Coastal Zone Management Act of 1972, 16 U.S.C. § 1451 et seq.; the Marine Mammal Protection Act of 1972, 16 U.S.C. § 1361 et seq. (1976 ed. and Supp.IV); the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 401 et seq.; various Amendments to the United States Constitution, congressional and Presidential directives concerning cessation of Navy operations on the neighboring island of Culebra, and Puerto Rico law. 2 The District Court also found that the Navy had violated the National Environmental Policy Act (NEPA) by failing to file an Environmental Impact Statement (EIS) or a reviewable environmental record to support a decision not to file such a statement, Romero-Barcelo v. Brown, 478 F.Supp. 646, 705 (P.R.1979), and had failed to nominate historic sites to the National Register as required under the National Historic Preservation Act. Ibid. It ordered the Navy to nominate such sites and to file an EIS. Id., at 708. The Court of Appeals remanded issues under the Endangered Species Act and the National Historic Preservation Act to the District Court for further consideration. Romero-Barcelo v. Brown, 643 F.2d 835, 858, 860, 862 (1981). It vacated the order involving NEPA and remanded with orders to dismiss because the Navy had filed an EIS in the interim. Id., at 862. Only the issue involving the FWPCA is before this Court. 3 The EPA issues effluent limitations for categories and classes of point sources. See generally E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977); 40 CFR part 400 et seq. (1981). In a situation somewhat similar to that before us, the Secretary of the Interior has, under the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq. (1976 ed. and Supp.IV), regulated deposit of shot into water by duck hunters who miss their targets. National Rifle Assn. v. Kleppe, 425 F.Supp. 1101 (D.C.1976), affirmance order, 187 U.S.App.D.C. 240, 571 F.2d 674 (1978). 4 The District Court wrote: "In fact, if anything, these waters are as aesthetically acceptable as any to be found anywhere, and Plaintiff's witnesses unanimously testified as to their being the best fishing grounds in Vieques." 478 F.Supp., at 667. "[I]f the truth be said, the control of large areas of Vieques [by the Navy] probably constitutes a positive factor in its over all ecology. The very fact that there are in the Navy zones modest numbers of various marine species which are practically nonexistent in the civilian sector of Vieques or in the main island of Puerto Rico, is an eloquent example of res ipsa loquitur." Id., at 682 (footnote omitted). 5 The District Court also took into consideration the delay by plaintiffs in asserting their claims. It concluded that although laches should not totally bar the claims, it did strongly militate against the granting of injunctive relief. Id., at 707. 6 Title 33 U.S.C. § 1323(a) (1976 ed., Supp.IV) provides, in relevant part: "The President may exempt any effluent source of any department, agency, or instrumentality in the executive branch from compliance with any such a requirement if he determines it to be in the paramount interest of the United States to do so. . . . No such exemptions shall be granted due to lack of appropriation unless the President shall have specifically requested such appropriation as part of the budgetary process and the Congress shall have failed to make available such requested appropriation. Any exemption shall be for a period not in excess of one year, but additional exemptions may be granted for periods of not to exceed one year upon the President's making a new determination. The President shall report each January to the Congress all exemptions from the requirements of this section granted during the preceding calendar year, together with his reason for granting such exemption." 7 The objective of this statute is in some respects similar to that sought in nuisance suits, where courts have fully exercised their equitable discretion and ingenuity in ordering remedies. E.g., Spur Industries, Inc. v. Del E. Webb Development Co., 108 Ariz. 178, 494 P.2d 700 (1972); Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 309 N.Y.S.2d 312, 257 N.E.2d 870 (1970). 8 Federal agencies must comply with the water pollution abatement requirements "in the same manner, and to the same extent as any nongovernmental entity. . . ." 33 U.S.C. § 1323(a) (1976 ed., Supp.IV). S.Rep.No. 92-414, p. 80 (1971), U.S.Code Cong. & Admin.News 1972, pp. 3668, 3746, pointed to "[f]ederal agencies such as the Department of Defense" for failing to abate pollution. 9 The Navy applied for an NPDES permit in December 1979. In May 1981, the EPA issued a draft NPDES permit and a notice of intent to issue that permit. The FWPCA requires a certification of compliance with state water quality standards before the EPA may issue an NPDES permit. 33 U.S.C. § 1341(a). The Environmental Quality Board of the Commonwealth of Puerto Rico denied the Navy a water quality certificate in connection with this application for an NPDES in June 1981. In February 1982, the Environmental Quality Board denied the Navy's reconsideration request and announced it was adhering to its original ruling. In a letter dated April 9, 1982, the Solicitor General informed the Clerk of the Court that the Navy has filed an action challenging the denial of the water quality certificate. United States v. Commonwealth of Puerto Rico, Civ. Action No. 82-0726 (Dist.Ct.PR). 10 As we have explained, the 1972 Amendments to the FWPCA established the NPDES as "a means of achieving and enforcing the effluent limitations. Under the NPDES, it is unlawful for any person to discharge a pollutant without obtaining a permit and complying with its terms. An NPDES permit serves to transform generally applicable effluent limitations and other standards—including those based on water quality—into the obligations (including a timetable for compliance) of the individual discharger, and the Amendments provide for direct administrative and judicial enforcement of permits. . . . With few exceptions, for enforcement purposes a discharger in compliance with the terms and conditions of an NPDES permit is deemed to be in compliance with those sections of the Amendments on which the permit conditions are based. . . . In short, the permit defines, and facilitates compliance with, and enforcement of, a preponderance of a discharger's obligations under the Amendments." EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 205, 96 S.Ct. 2022, 2025, 48 L.Ed.2d 578 (1976) (footnote omitted). 11 We have, however, held some standards related to phased compliance to be absolute. See EPA v. National Crushed Stone Assn., 449 U.S. 64, 101 S.Ct. 295, 66 L.Ed.2d 268 (1980). In Middlesex County Sewerage Authority v. National Sea Clammers Ass'n., 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), we concluded that the federal common law of nuisance was pre-empted by the FWPCA and other similar Acts: "In the absence of strong indicia of a contrary congressional intent, we are compelled to conclude that Congress provided precisely the remedies it considered appropriate." Id., at 15, 101 S.Ct., at 2623; see Milwaukee v. Illinois, 451 U.S. 304, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981). But, as we have also observed in construing this Act: "The question . . . is not what a court thinks is generally appropriate to the regulatory process, it is what Congress intended. . . ." E. I. du Pont de Nemours & Co. v. Train, 430 U.S., at 138, 97 S.Ct., at 980. Here we do not read the FWPCA as intending to abolish the courts' equitable discretion in ordering remedies. 12 The statute at issue in Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754 (1944), contained language very similar to that in § 1319(b). It directed the Price Administrator to seek "a permanent or temporary injunction, restraining order, or other order" to halt violations. Id., at 322, 64 S.Ct., at 588. The Court determined that such statutory language did not require the court to issue an injunction even when the Administrator had sued for injunctive relief. In Hecht Co., the court's equitable discretion overrode that of the Administrator. If a court can properly refuse an injunction in the circumstances of Hecht Co., the exercise of its discretion seems clearly appropriate in a case such as this, where the EPA Administrator was not a party and had not yet expressed his judgment. The action of the District Court permitted it to obtain the benefit of the EPA's recommendation before deciding to enjoin the discharge. In Hecht Co., unlike here, the violations had ceased by the time the injunction was sought. The Court, however, explained that "the cessation of violations, whether before or after the institution of a suit by the Administrator, is no bar to the issuance of an injunction." Id., at 327, 64 S.Ct., at 590. Thus, contrary to the dissent's characterization, post, at 327-328, the Court did not base its decision on the fact that violations had ceased. 13 See n. 6, supra. * The District Court's thorough opinion demonstrates the reasonableness of its decision in light of all pertinent factors, including of course the evident purpose of the statute. The District Court concluded as matters of fact that the Navy's violations have caused no "appreciable harm," Romero-Barcelo v. Brown, 478 F.Supp. 646, 706 (PR1979), and indeed that the Navy's control of the area "probably constitutes a positive factor in its over all ecology," id., at 682. Moreover, the District Court found it "abundantly clear from the evidence in the record . . . that the training that takes place in Vieques is vital to the defense of the interests of the United States." Id., at 707. Balancing the equities as they then stood, the District Court declined to order an immediate cessation of all violations but nonetheless issued affirmative orders aimed at securing compliance with the law. See id., at 708. As I read its opinion, the District Court did not foreclose the possibility of ordering further relief that might become appropriate under changed circumstances at a later date. 1 Cf. Steelworkers v. United States, 361 U.S. 39, 54-59, 80 S.Ct. 1, 177, 182-185, 4 L.Ed.2d 12 (Frankfurter and Harlan, JJ., concurring). 2 "Whether or not the Navy's activities in fact harm the coastal waters, it has an absolute statutory obligation to stop any discharges of pollutants until the permit procedure has been followed and the Administrator of the Environmental Protection Agency, upon review of the evidence, has granted a permit." Romero-Barcelo v. Brown, 643 F.2d 835, 861 (CA1 1981). This statement by the Court of Appeals is entirely consistent with the comments in the Senate Report on the legislation that "[e]nforcement of violations . . . should be based on relatively narrow fact situations requiring a minimum of discretionary decision making or delay," and that "the issue before the courts would be a factual one of whether there had been compliance." S.Rep.No. 92-414, pp. 64, 80 (1971), U.S.Code Cong. & Admin.News 1972, pp. 3730, 3746. 3 The statute expressly subjects federal agencies to all laws "respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity." 33 U.S.C. § 1323(a) (1976 ed., Supp.IV). Indeed, Congress required federal agencies "to provide national leadership in the control of water pollution," S.Rep.No. 92-414, supra, at 67, U.S.Code Cong. & Admin.News 1972, p. 3733, and to "be a model for the Nation," H.R.Rep.No. 92-911, p. 118 (1972). 4 "Not only are the technical problems difficult—doubtless the reason Congress vested authority to administer the Act in administrative agencies possessing the necessary expertise—but the general area is particularly unsuited to the approach inevitable under a regime of federal common law. Congress criticized past approaches to water pollution control as being 'sporadic' and 'ad hoc,' S.Rep.No. 92-414, p. 95 (1971), 2 Leg.Hist. 1511, apt characterizations of any judicial approach applying federal common law, see Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 319 [75 S.Ct. 368, 373, 99 L.Ed. 337] (1955)." Milwaukee v. Illinois, 451 U.S. 304, 325, 101 S.Ct. 1784, 1796, 68 L.Ed.2d 114. 5 In my opinion the national security considerations that were persuasive to the District Court are not matters that are suitable for judicial evaluation. Congress has wisely given the President virtually unlimited authority to exempt the military from the statute on national defense grounds. If those grounds justify an exemption in this case, the Navy clearly should have obtained it from its Commander in Chief, not from a judge unlearned in such matters. This Court, however, makes the curious argument that the Presidential exemption was intended to permit noncompliance with the statute and therefore merely complements the equitable discretion of a district court also to authorize noncompliance. Ante, at 318-319. 6 The District Court ordered the Navy to file for an NPDES permit " 'with all deliberate speed.' " Romero-Barcelo v. Brown, 478 F.Supp. 646, 708 (PR 1979) (quoting Brown v. Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083). 7 It is ironic that the Court comes to the aid of the Navy even though Congress authorized an executive exemption for federal (particularly military) operations but no analogous exemption for important private activities, and even though Congress intended federal agencies to assume a leadership role in the water pollution control effort. To paraphrase the Senate Report, the Federal Government cannot expect private industry to obey the law by ceasing discharges of pollutants until a permit is obtained if the Federal Government is not willing to obey the same law or at least invoke a statutory exemption. See S.Rep.No. 92-414, p. 67 (1971). 8 The Navy has been in continuous violation of the statute during the entire decade since its enactment. 9 Indeed, I am unaware of any case in which the Court has permitted a statutory violation to continue. 10 In the steel seizure case, Justice Frankfurter rejected "the Government's argument that overriding public interest prevents the issuance of the injunction despite the illegality of the seizure": " 'Balancing the equities' when considering whether an injunction should issue, is lawyers' jargon for choosing between conflicting public interests. When Congress itself has struck the balance, has defined the weight to be given the competing interests, a court of equity is not justified in ignoring that pronouncement under the guise of exercising equitable discretion." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609-610, 72 S.Ct. 863, 896-897, 96 L.Ed. 1153 (concurring opinion). 11 "The petitioners contend that the statutory scheme provides no guidance, beyond indicating that backpay awards are within the District Court's discretion. We disagree. It is true that backpay is not an automatic or mandatory remedy; like all other remedies under the Act, it is one which the courts 'may' invoke. The scheme implicitly recognizes that there may be cases calling for one remedy but not another, and—owing to the structure of the federal judiciary—these choices are, of course, left in the first instance to the district courts. However, such discretionary choices are not left to a court's 'inclination, but to its judgment; and its judgment is to be guided by sound legal principles.' United States v. Burr, 25 F.Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.). The power to award backpay was bestowed by Congress, as part of a complex legislative design directed at a historic evil of national proportions. A court must exercise this power 'in light of the large objectives of the Act,' Hecht Co. v. Bowles, 321 U.S. 321, 331 [64 S.Ct. 587, 592, 88 L.Ed. 754] (1944). That the court's discretion is equitable in nature, see Curtis v. Loether, 415 U.S. 189, 197 [94 S.Ct. 1005, 1010, 39 L.Ed.2d 260] (1974), hardly means that it is unfettered by meaningful standards or shielded from thorough appellate review. In Mitchell v. [Robert] DeMario Jewelry, 361 U.S. 288, 292 [80 S.Ct. 332, 335, 4 L.Ed.2d 323] (1960), this Court held, in the face of a silent statute, that district courts enjoyed the 'historic power of equity' to award lost wages to workmen unlawfully discriminated against under § 17 of the Fair Labor Standards Act of 1938, 52 Stat. 1069, as amended, 29 U.S.C. § 217 (1958 ed.). The Court simultaneously noted that 'the statutory purposes [leave] little room for the exercise of discretion not to order reimbursement.' 361 U.S., at 296 [80 S.Ct., at 337]. "It is true that '[e]quity eschews mechanical rules . . . [and] depends on flexibility.' Holmberg v. Armbrecht, 327 U.S. 392, 396 [66 S.Ct. 582, 584, 90 L.Ed. 743] (1946). But when Congress invokes the Chancellor's conscience to further transcendent legislative purposes, what is required is the principled application of standards consistent with those purposes and not 'equity [which] varies like the Chancellor's foot.' Important national goals would be frustrated by a regime of discretion that 'produce[d] different results for breaches of duty in situations that cannot be differentiated in policy.' Moragne v. States Marine Lines, 398 U.S. 375, 405 [90 S.Ct. 1772, 1790, 26 L.Ed.2d 339] (1970)." Albemarle Paper Co. v. Moody, 422 U.S. 405, 415-417, 95 S.Ct. 2362, 2370-2371, 45 L.Ed.2d 280 (footnotes omitted). 12 "The objective of this statute is in some respects similar to that sought in nuisance suits, where courts have fully exercised their equitable discretion and ingenuity in ordering remedies. E.g., Spur Industries, Inc. v. Del E. Webb Development Co., 108 Ariz. 178, 494 P.2d 700 (1972); Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 309 N.Y.S.2d 312, 257 N.E.2d 870 (1970)." Ante, at 314, n.7. 13 Indeed, this proposition has been consistently, repeatedly, and unequivocally reaffirmed by this Court: "The discharge of 'pollutants' into water is unlawful without a permit issued by the Administrator of the EPA or, if a State has developed a program that complies with the FWPCA, by the State." Train v. Colorado Public Interest Research Group, 426 U.S. 1, 7, 96 S.Ct. 1938, 1941, 48 L.Ed.2d 434. "Under the NPDES, it is unlawful for any person to discharge a pollutant without obtaining a permit and complying with its terms." EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 205, 96 S.Ct. 2022, 2025, 48 L.Ed.2d 578. "We conclude that, at least so far as concerns the claims of respondents, Congress has not left the formulation of appropriate federal standards to the courts through application of often vague and indeterminate nuisance concepts and maxims of equity jurisprudence, but rather has occupied the field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency." Milwaukee v. Illinois, 451 U.S., at 317, 101 S.Ct., at 1792. In EPA v. National Crushed Stone Assn., 449 U.S. 64, 101 S.Ct. 295, 66 L.Ed.2d 268, the Court read the "plain language of the statute," id., at 73, 101 S.Ct., at 302, to require private firms "either to conform to BPT standards or to cease production." Id., at 76, 101 S.Ct., at 303. 14 "Congress' intent in enacting the Amendments was clearly to establish an all-encompassing program of water pollution regulation. Every point source discharge is prohibited unless covered by a permit, which directly subjects the discharger to the administrative apparatus established by Congress to achieve its goals." Milwaukee v. Illinois, 451 U.S., at 318, 101 S.Ct., at 1792 (emphasis in original; footnote omitted). 15 The Senate Report emphasized that "if the timetables established throughout the Act are to be met, the threat of sanction must be real, and enforcement provisions must be swift and direct." S.Rep.No. 92-414, p. 65 (1971), U.S.Code Cong. & Admin.News 1972, p. 3731. 16 "The establishment of such a self-consciously comprehensive program by Congress, which certainly did not exist when Illinois v. Milwaukee [406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712] was decided, strongly suggests that there is no room for courts to attempt to improve on that program with federal common law." Milwaukee v. Illinois, supra, at 319, 101 S.Ct., at 1793. Today's holding that a federal court has inherent power to grant exemptions from the statutory permit requirement presents a dramatic contrast with the holding in Milwaukee v. Illinois : "Federal courts lack authority to impose more stringent effluent limitations under federal common law than those imposed by the agency charged by Congress with administering this comprehensive scheme." 451 U.S., at 320, 101 S.Ct., at 1794. 17 See also n.5, supra. 18 "The Committee believes that the no-discharge declaration in Section 13 of the 1899 Refuse Act is useful as an enforcement tool. Therefore, this section [§ 301] declares the discharge of pollutants unlawful. The Committee believes it is important to clarify this point: No one has the right to pollute. "But the Committee recognizes the impracticality of any effort to halt all pollution immediately. Therefore, this section provides an exception if the discharge meets the requirements of this section, Section 402, and others listed in the bill." S.Rep.No. 92-414, supra, at 43, U.S.Code Cong. & Admin.News 1972, 3709. 19 "An NPDES permit serves to transform generally applicable effluent limitations and other standards—including those based on water quality—into the obligations (including a timetable for compliance) of the individual discharger, and the Amendments provide for direct administrative and judicial enforcement of permits. With few exceptions, for enforcement purposes a discharger in compliance with the terms and conditions of an NPDES permit is deemed to be in compliance with those sections of the Amendments on which the permit conditions are based. In short, the permit defines, and facilitates compliance with, and enforcement of, a preponderance of a discharger's obligations under the Amendments." EPA v. California ex rel. State Water Resources Control Board, 426 U.S., at 205, 96 S.Ct., at 2025 (citations omitted). 20 "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: " '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). "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." TVA v. Hill, 437 U.S. 153, 194-195, 98 S.Ct. 2279, 2301-2302, 57 L.Ed.2d 117.

78

456 U.S. 353 102 S.Ct. 1825 72 L.Ed.2d 182 MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Petitioner,v.J. J. CURRAN and Jacquelyn L. Curran. NEW YORK MERCANTILE EXCHANGE et al., Petitioners, v. Neil LEIST, Philip Smith and Incomco. CLAYTON BROKERAGE CO. OF ST. LOUIS, INC., Petitioner, v. Neil LEIST, Philip Smith and Incomco. HEINHOLD COMMODITIES, INC. et al., Petitioners, v. Neil LEIST et al. Nos. 80-203, 80-757, 80-895 and 80-936. Argued Nov. 2, 1981. Decided May 3, 1982. Syllabus The Commodity Exchange Act (CEA), which regulates commodity futures trading, was substantially amended by the Commodity Futures Trading Commission Act of 1974. Among other things, the Commodity Futures Exchange Commission was created to assume the regulatory and enforcement powers previously exercised by the Secretary of Agriculture and certain additional powers, and that Commission was authorized to grant reparations to any person complaining of a violation of the CEA or its implementing regulations committed by any futures commission merchant, floor broker, commodity trading adviser, or commodity pool operator. But the 1974 Act, like the original legislation and other amendatory enactments, was silent on the subject of private judicial remedies for persons injured by a violation of the CEA. These cases involve an action by an investor in commodity futures contracts against his futures commission merchant or broker for violation of an antifraud provision of the CEA, and three actions by speculators in futures contracts against the New York Mercantile Exchange and its officials and against futures commission merchants, claiming damages resulting from unlawful price manipulation that allegedly could have been prevented by the Exchange's enforcement of its own rules. In each action, after the respective District Courts had ruled adversely to the plaintiffs, the respective Courts of Appeals held that the plaintiffs had implied rights of action under the CEA. Held: A private party may maintain an action for damages caused by a violation of the CEA. Pp. 374-395. (a) Where it is clear that an implied cause of action under the CEA was a part of the "contemporary legal context" in which Congress undertook a comprehensive reexamination and amendment of the CEA in 1974, the fact that the amendments left intact the provisions under which the federal courts had implied a cause of action is itself evidence that Congress affirmatively intended to preserve that remedy. Pp. 374-382. (b) Moreover, a review of the legislative history of the 1974 enactment indicates that preservation of the remedy was indeed what Congress intended. Pp. 382-388. (c) Purchasers and sellers of futures contracts have standing to assert both types of claims involved here—violation of the statutory prohibition against fraudulent and deceptive conduct and of the provisions designed to prevent price manipulation. The legislative history clearly indicates that Congress intended to protect all futures traders from price manipulation and other fraudulent conduct violative of the statute. Since actions by investors against exchanges were part of the contemporary legal context that Congress intended to preserve, exchanges can be held accountable for breaching their statutory duties to enforce their own rules prohibiting price manipulation. It follows that those persons who are participants in a conspiracy to manipulate the market in violation of those rules are also subject to suit by futures traders who can prove injury from such violations. Pp. 388-395 622 F.2d 216 and 638 F.2d 283, affirmed. Richard P. Saslow, Detroit, Mich., for petitioner. Robert A. Hudson, Detroit, Mich., for respondents. Barry Sullivan, Washington, D.C., for the Commodity Futures Trading Commission as amicus curiae, by special leave of Court. William E. Hegarty, New York City, for petitioners in 80-757. Gerard K. Sandweg, Jr., St. Louis, Mo., for petitioners in 80-895 and 80-936. Leonard Toboroff, New York City, for respondents in each case. Justice STEVENS delivered the opinion of the Court. 1 The Commodity Exchange Act (CEA), 7 U.S.C. § 1 et seq. (1976 ed. and Supp.IV),1 has been aptly characterized as "a comprehensive regulatory structure to oversee the volatile and esoteric futures trading complex."2 The central question presented by these cases is whether a private party may maintain an action for damages caused by a violation of the CEA. The United States Court of Appeals for the Sixth Circuit answered that question affirmatively, holding that an investor may maintain an action against his broker for violation of an antifraud provision of the CEA.3 The Court of Appeals for the Second Circuit gave the same answer to the question in actions brought by investors claiming damages resulting from unlawful price manipulation that allegedly could have been prevented by the New York Mercantile Exchange's enforcement of its own rules.4 2 We granted certiorari to resolve a conflict between these decisions and a subsequent decision of the Court of Appeals for the Fifth Circuit,5 and we now affirm. Prefatorily, we describe some aspects of the futures trading business, summarize the statutory scheme, and outline the essential facts of the separate cases.6 3 * Prior to the advent of futures trading, agricultural products generally were sold at central markets. When an entire crop was harvested and marketed within a short time-span, dramatic price fluctuations sometimes created severe hardship for farmers or for processors. Some of these risks were alleviated by the adoption of quality standards, improvements in storage and transportation facilities, and the practice of "forward contracting"—the use of executory contracts fixing the terms of sale in advance of the time of delivery.7 4 When buyers and sellers entered into contracts for the future delivery of an agricultural product, they arrived at an agreed price on the basis of their judgment about expected market conditions at the time of delivery. Because the weather and other imponderables affected supply and demand, normally the market price would fluctuate before the contract was performed. A declining market meant that the executory agreement was more valuable to the seller than the commodity covered by the contract; conversely, in a rising market the executory contract had a special value for the buyer, who not only was assured of delivery of the commodity but also could derive a profit from the price increase. 5 The opportunity to make a profit as a result of fluctuations in the market price of commodities covered by contracts for future delivery motivated speculators to engage in the practice of buying and selling "futures contracts." A speculator who owned no present interest in a commodity but anticipated a price decline might agree to a future sale at the current market price, intending to purchase the commodity at a reduced price on or before the delivery date. A "short" sale of that kind would result in a loss if the price went up instead of down. On the other hand, a price increase would produce a gain for a "long" speculator who had acquired a contract to purchase the same commodity with no intent to take delivery but merely for the purpose of reselling the futures contract at an enhanced price. 6 In the 19th century the practice of trading in futures contracts led to the development of recognized exchanges or boards of trade. At such exchanges standardized agreements covering specific quantities of graded agricultural commodities to be delivered during specified months in the future were bought and sold pursuant to rules developed by the traders themselves. Necessarily the commodities subject to such contracts were fungible. For an active market in the contracts to develop, it also was essential that the contracts themselves be fungible. The exchanges therefore developed standard terms describing the quantity and quality of the commodity, the time and place of delivery, and the method of payment; the only variable was price. The purchase or sale of a futures contract on an exchange is therefore motivated by a single factor—the opportunity to make a profit (or to minimize the risk of loss) from a change in the market price. 7 The advent of speculation in futures markets produced well-recognized benefits for producers and processors of agricultural commodities. A farmer who takes a "short" position in the futures market is protected against a price decline; a processor who takes a "long" position is protected against a price increase. Such "hedging" is facilitated by the availability of speculators willing to assume the market risk that the hedging farmer or processor wants to avoid. The speculators' participation in the market substantially enlarges the number of potential buyers and sellers of executory contracts and therefore makes it easier for farmers and processors to make firm commitments for future delivery at a fixed price. The liquidity of a futures contract, upon which hedging depends, is directly related to the amount of speculation that takes place.8 8 Persons who actually produce or use the commodities that are covered by futures contracts are not the only beneficiaries of futures trading. The speculators, of course, have opportunities to profit from this trading. Moreover, futures trading must be regulated by an organized exchange. In addition to its regulatory responsibilities, the exchange must maintain detailed records and perform a clearing function to discharge the offsetting contracts that the short or long speculators have no desire to perform.9 The operation of the exchange creates employment opportunities for futures commission merchants, who solicit orders from individual traders, and for floor brokers, who make the actual trades on the floor of the exchange on behalf of futures commission merchants and their customers. The earnings of the persons who operate the futures market—the exchange itself, the clearinghouse, the floor brokers, and the futures commission merchants—are financed by commissions on the purchase and sale of futures contracts made over the exchange. 9 Thus, in a broad sense, futures trading has a direct financial impact on three classes of persons. Those who actually are interested in selling or buying the commodity are described as "hedgers";10 their primary financial interest is in the profit to be earned from the production or processing of the commodity. Those who seek financial gain by taking positions in the futures market generally are called "speculators" or "investors"; without their participation, futures markets "simply would not exist."11 Finally, there are the futures commission merchants, the floor brokers, and the persons who manage the market; they also are essential participants, and they have an interest in maximizing the activity on the exchange. The petitioners in these cases are members of this third class whereas their adversaries, the respondents, are speculators or investors. II 10 Because Congress has recognized the potential hazards as well as the benefits of futures trading, it has authorized the regulation of commodity futures exchanges for over 60 years. In 1921 it enacted the Future Trading Act, 42 Stat. 187, which imposed a prohibitive tax on grain12 futures transactions that were not consummated on an exchange designated as a "contract market" by the Secretary of Agriculture.13 The 1921 statute was held unconstitutional as an improper exercise of the taxing power in Hill v. Wallace, 259 U.S. 44, 42 S.Ct. 453, 66 L.Ed. 822 (1922), but its regulatory provisions were promptly re-enacted in the Grain Futures Act, 42 Stat. 998, and upheld under the commerce power in Chicago Board of Trade v. Olsen, 262 U.S. 1, 43 S.Ct. 470, 67 L.Ed. 839 (1923).14 Under the original legislation, the principal function of the Secretary was to require the governors of a privately organized exchange to supervise the operation of the market. Two of the conditions for designation were that the governing board of the contract market prevent its members from disseminating misleading market information15 and prevent the "manipulation of prices or the cornering of any grain by the dealers or operators upon such board."16 The requirement that designated contract markets police themselves and the prohibitions against disseminating misleading information and manipulating prices have been part of our law ever since. 11 In 1936 Congress changed the name of the statute to the Commodity Exchange Act, enlarged its coverage to include other agricultural commodities,17 and added detailed provisions regulating trading in futures contracts. Commodity Exchange Act, ch. 545, 49 Stat. 1491. Among the significant new provisions was § 4b, prohibiting any member of a contract market from defrauding any person in connection with the making of a futures contract,18 and § 4a, authorizing a commission composed of the Secretary of Agriculture, the Secretary of Commerce, and the Attorney General to fix limits on the amount of permissible speculative trading in a futures contract.19 The legislation also required registration of futures commission merchants and floor brokers.20 12 In 1968 the CEA again was amended to enlarge its coverage21 and to give the Secretary additional enforcement authority. Act of Feb. 19, 1968, 82 Stat. 26. The Secretary was authorized to disapprove exchange rules that were inconsistent with the statute,22 and the contract markets were required to enforce their rules;23 the Secretary was authorized to suspend a contract market24 or to issue a cease-and-desist order25 upon a showing that the contract market's rules were not being enforced. In addition, the criminal sanctions for price manipulation were increased significantly,26 and any person engaged in price manipulation was subjected to the Secretary's authority to issue cease-and-desist orders for violations of the CEA and implementing regulations.27 13 In 1974, after extensive hearings and deliberation, Congress enacted the Commodity Futures Trading Commission Act of 1974. 88 Stat. 1389. Like the 1936 and the 1968 legislation, the 1974 enactment was an amendment to the existing statute28 that broadened its coverage29 and increased the penalties for violation of its provisions.30 The Commission was authorized to seek injunctive relief,31 to alter or supplement a contract market's rules,32 and to direct a contract market to take whatever action deemed necessary by the Commission in an emergency.33 The 1974 legislation retained the basic statutory prohibitions against fraudulent practices and price manipulation,34 as well as the authority to prescribetrading limits. The 1974 amendments, however, did make substantial changes in the statutory scheme; Congress authorized a newly created Commodities Futures Trading Commission to assume the powers previously exercised by the Secretary of Agriculture, as well as certain additional powers. The enactment also added two new remedial provisions for the protection of individual traders. The newly enacted § 5a(11) required every contract market to provide an arbitration procedure for the settlement of traders' claims of no more than $15,000.35 And the newly enacted § 14 authorized the Commission to grant reparations to any person complaining of any violation of the CEA, or its implementing regulations, committed by any futures commission merchant or any associate thereof, floor broker, commodity trading adviser, or commodity pool operator.36 This section authorized the Commission to investigate complaints and, "if in its opinion the facts warrant such action," to afford a hearing before an administrative law judge. Reparations orders entered by the Commission are subject to judicial review. 14 The latest amendments to the CEA, the Futures Trading Act of 1978, 92 Stat. 865, again increased the penalties for violations of the statute.37 The enactment also authorized the States to bring parens patriae actions, seeking injunctive or monetary relief for certain violations of the CEA, implementing regulations, or Commission orders.38 15 Like the previous enactments, as well as the 1978 amendments, the Commodity Futures Trading Commission Act of 1974 is silent on the subject of private judicial remedies for persons injured by a violation of the CEA. III 16 In the four cases before us, the allegations in the complaints filed by respondents are assumed to be true. The first involves a complaint by customers against their broker. The other three arise out of a malfunction of the contract market for futures contracts covering the delivery of Maine potatoes in May 1976, " 'when the sellers of almost 1,000 contracts failed to deliver approximately 50,000,000 pounds of potatoes, resulting in the largest default in the history of commodities futures trading in this country.' "39 No. 80-203 17 Respondents in No. 80-203 were customers of petitioner, a futures commission merchant registered with the Commission. In 1973, they authorized petitioner to trade in commodity futures on their behalf and deposited $100,000 with petitioner to finance such trading. The trading initially was profitable, but substantial losses subsequently were suffered and the account ultimately was closed. 18 In 1976, the respondents commenced this action in the United States District Court for the Eastern District of Michigan. They alleged that petitioner had mismanaged the account, had made material misrepresentations in connection with the opening and the management of the account, had made a large number of trades for the sole purpose of generating commissions, and had refused to follow their instructions. Respondents claimed that petitioner had violated the CEA, the federal securities laws, and state statutory and common law. 19 The District Court dismissed the claims under the federal securities laws and stayed other proceedings pending arbitration. App. to Pet. for Cert. in No. 80-203, pp. A-39 to A-49. On appeal, a divided panel of the Court of Appeals for the Sixth Circuit affirmed the dismissal of the federal securities laws claims,40 but held that the contractual provision requiring respondents to submit the dispute to arbitration was unenforceable.41 Judge Engel, writing for the majority, then sua sponte noticed and decided the question whether respondents could maintain a private damages action under the CEA:42 20 "Although the CEA does not expressly provide for a private right of action to recover damages, an implied right of action was generally thought to exist prior to the 1974 amendment of the Act. Consistent with this view, no issue concerning the continuing validity of the implied right of action was raised in the court below, nor in this appeal. Nevertheless, to provide direction to the district court upon remand and to avoid further delay in this already protracted litigation, we review this issue and specifically agree that an implied private right of action survived the 1974 amendments to the Act." 622 F.2d 216, 230 (1980) (footnotes omitted). 21 Judge Phillips dissented from this conclusion. Id. at 237. We granted certiorari limited to this question: "Does the Commodity Exchange Act create an implied private right of action for fraud in favor of a customer against his broker?" 451 U.S. 906, 101 S.Ct. 1971, 68 L.Ed.2d 293 (1981). Nos. 80-757, 80-895, and 80-936 22 One of the futures contracts traded on the New York Mercantile Exchange provided for the delivery of a railroad car lot of 50,000 pounds of Maine potatoes at a designated place on the Bangor and Aroostook Railroad during the period between May 7, 1976, and May 25, 1976. Trading in this contract commenced early in 1975 and terminated on May 7, 1976. On two occasions during this trading period the Department of Agriculture issued reports containing estimates that total potato stocks, and particularly Maine potato stocks, were substantially down from the previous year. This information had the understandable consequences of inducing investors to purchase May Maine potato futures contracts (on the expectation that they would profit from a shortage of potatoes in May) and farmers to demand a higher price for their potatoes on the cash market.43 23 To counteract the anticipated price increases, a group of entrepreneurs described in the complaints as the "short sellers" formed a conspiracy to depress the price of the May Maine potato futures contract. The principal participants in this "short conspiracy" were large processors of potatoes who then were negotiating with a large potato growers association on the cash market. The conspirators agreed to accumulate an abnormally large short position in the May contract, to make no offsetting purchases of long contracts at a price in excess of a fixed maximum, and to default, if necessary, on their short commitments. They also agreed to flood the Maine cash markets with unsold potatoes. This multifaceted strategy was designed to give the growers association the impression that the supply of Maine potatoes would be plentiful. On the final trading day the short sellers had accumulated a net short position of almost 1,900 contracts, notwithstanding a Commission regulation44 limiting their lawful net position to 150 contracts. They did, in fact, default. 24 The trading limit also was violated by a separate group described as the "long conspirators." Aware of the short conspiracy, they determined that they not only could counteract its effects but also could enhance the price the short conspirators would have to pay to liquidate their short positions by accumulating an abnormally large long position—at the close of trading they controlled 911 long contracts—and by creating an artificial shortage of railroad cars during the contract delivery period. Because the long conspirators were successful in tying up railroad cars, they prevented the owners of warehoused potatoes from making deliveries to persons desiring to perform short contracts.45 25 Respondents are speculators who invested long in Maine futures contracts.46 Allegedly, if there had been no price manipulation, they would have earned a significant profit by reason of the price increase that free market forces would have produced. 26 Petitioners in No. 80-757 are the New York Mercantile Exchange and its officials. Respondents' complaints alleged that the Exchange knew, or should have known, of both the short and the long conspiracies but failed to perform its statutory duties to report these violations to the Commission and to prevent manipulation of the contract market. The Exchange allegedly had the authority under its rules to declare an emergency, to require the shorts and the longs to participate in an orderly liquidation, and to authorize truck deliveries and other measures that would have prevented or mitigated the consequences of the massive defaults. 27 Petitioners in No. 80-895 and No. 80-936 are the firms of futures commission merchants that the short conspirators used to accumulate their net short position. The complaint alleged that petitioners knowingly participated in the conspiracy to accumulate the net short position, and in doing so violated position and trading limits imposed by the Commission and Exchange rules requiring liquidation of contracts that obviously could not be performed.47 Moreover, the complaint alleged that petitioners violated their statutory duty to report violations of the CEA to the Commission. 28 In late 1976, three separate actions were filed in the United States District Court for the Southern District of New York.48 After extensive discovery, the District Court ruled on various motions, all of which challenged the plaintiffs' right to recover damages under the CEA.49 The District Court considered it beyond question that the plaintiffs were within the class for whose special benefit the statute had been enacted,50 but it concluded that Congress did not intend a private right of action to exist under the CEA. The court granted summary judgment on all claims seeking recovery under that statute. National Super Spuds, Inc. v. New York Mercantile Exchange, 470 F.Supp. 1257, 1259-1263 (1979). 29 A divided panel of the Court of Appeals for the Second Circuit reversed. The majority opinion, written by Judge Friendly, adopted essentially the same reasoning as the Sixth Circuit majority in No. 80-203, but placed greater emphasis on "the 1974 Congress' awareness of the uniform judicial recognition of private rights of action under the Commodity Exchange Act and [its] desire to preserve them," Leist v. Simplot, 638 F.2d 283, 307 (1980), and on the similarity between the implied private remedies under the CEA and the remedies implied under other federal statutes, particularly those regulating trading in securities, id., at 296-299. Judge Mansfield, in dissent, reasoned that the pre-1974 cases recognizing a private right of action under the CEA were incorrectly decided and that a fair application of the criteria identified in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975),51 required rejection of plaintiffs' damages claims. 638 F.2d, at 323. 30 We granted certiorari. 450 U.S. 910, 101 S.Ct. 1346, 67 L.Ed.2d 332 (1981). For the purpose of considering the question whether respondents may assert an implied cause of action for damages, it is assumed that each of the petitioners has violated the statute and thereby caused respondents' alleged injuries. IV 31 "When Congress intends private litigants to have a cause of action to support their statutory rights, the far better course is for it to specify as much when it creates those rights. But the Court has long recognized that under certain limited circumstances the failure of Congress to do so is not inconsistent with an intent on its part to have such a remedy available to the persons benefited by its legislation." Cannon v. University of Chicago, 441 U.S. 677, 717, 99 S.Ct. 1946, 1968, 60 L.Ed.2d 560 (1979). 32 Our approach to the task of determining whether Congress intended to authorize a private cause of action has changed significantly, much as the quality and quantity of federal legislation has undergone significant change. When federal statutes were less comprehensive, the Court applied a relatively simple test to determine the availability of an implied private remedy. If a statute was enacted for the benefit of a special class, the judiciary normally recognized a remedy for members of that class. Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874 (1916).52 Under this approach, federal courts, following a common-law tradition, regarded the denial of a remedy as the exception rather than the rule.53 33 Because the Rigsby approach prevailed throughout most of our history,54 there is no merit to the argument advanced by petitioners that the judicial recognition of an implied private remedy violates the separation-of-powers doctrine. As Justice Frankfurter explained: 34 "Courts . . . are organs with historic antecedents which bring with them well-defined powers. They do not require explicit statutory authorization for familiar remedies to enforce statutory obligations. Texas & N.O.R. Co. v. Brotherhood of Clerks, 281 U.S. 548 [50 S.Ct. 427, 74 L.Ed. 1034]; Virginian R. Co. v. System Federation, 300 U.S. 515 [57 S.Ct. 592, 81 L.Ed. 789]; Deckert v. Independence Shares Corp., 311 U.S. 282 [61 S.Ct. 229, 85 L.Ed. 189]. A duty declared by Congress does not evaporate for want of a formulated sanction. When Congress has 'left the matter at large for judicial determination,' our function is to decide what remedies are appropriate in the light of the statutory language and purpose and of the traditional modes by which courts compel performance of legal obligations. See Board of Comm'rs v. United States, 308 U.S. 343, 351, 60 S.Ct. 285, 288, 84 L.Ed. 313. If civil liability is appropriate to effectuate the purposes of a statute, courts are not denied this traditional remedy because it is not specifically authorized. Texas & Pac. R. Co. v. Rigsby, 241 U.S. 33 [36 S.Ct. 482, 60 L.Ed. 874]; Steele v. Louisville & N.R. Co., 323 U.S. 192 [65 S.Ct. 226, 89 L.Ed. 173]; Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210 [65 S.Ct. 235, 89 L.Ed. 187]; cf. De Lima v. Bidwell, 182 U.S. 1 [21 S.Ct. 743, 45 L.Ed. 1041]." Montana-Dakota Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 261-262, 71 S.Ct. 692, 700, 95 L.Ed. 912 (1951) (dissenting opinion). 35 During the years prior to 1975, the Court occasionally refused to recognize an implied remedy, either because the statute in question was a general regulatory prohibition enacted for the benefit of the public at large, or because there was evidence that Congress intended an express remedy to provide the exclusive method of enforcement.55 While the Rigsby approach prevailed, however, congressional silence or ambiguity was an insufficient reason for the denial of a remedy for a member of the class a statute was enacted to protect.56 36 In 1975 the Court unanimously decided to modify its approach to the question whether a federal statute includes a private right of action.57 In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Court confronted a claim that a private litigant could recover damages for violation of a criminal statute that had never before been thought to include a private remedy. In rejecting that claim the Court outlined criteria that primarily focused on the intent of Congress in enacting the statute under review.58 The increased complexity of federal legislation59 and the increased volume of federal litigation strongly supported the desirability of a more careful scrutiny of legislative intent than Rigsby had required. Our cases subsequent to Cort v. Ash have plainly stated that our focus must be on "the intent of Congress." Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S.Ct. 2061, 2066, 68 L.Ed.2d 500 (1981).60 "The key to the inquiry is the intent of the Legislature." Middlesex County Sewerage Auth. v. National Sea Clammers Assn., 453 U.S. 1, 13, 101 S.Ct. 2615, 2622, 69 L.Ed.2d 435 (1981). The key to these cases is our understanding of the intent of Congress in 1974 when it comprehensively reexamined and strengthened the federal regulation of futures trading. V 37 In determining whether a private cause of action is implicit in a federal statutory scheme when the statute by its terms is silent on that issue, the initial focus must be on the state of the law at the time the legislation was enacted. More precisely, we must examine Congress' perception of the law that it was shaping or reshaping.61 When Congress enacts new legislation, the question is whether Congress intended to create a private remedy as a supplement to the express enforcement provisions of the statute. When Congress acts in a statutory context in which an implied private remedy has already been recognized by the courts, however, the inquiry logically is different. Congress need not have intended to create a new remedy, since one already existed; the question is whether Congress intended to preserve the pre-existing remedy. 38 In Cannon v. University of Chicago, we observed that "[i]t is always appropriate to assume that our elected representatives, like other citizens, know the law." 441 U.S. at 696-697, 99 S.Ct. at 1957-58. In considering whether Title IX of the Education Amendments of 1972 included an implied private cause of action for damages, we assumed that the legislators were familiar with the judicial decisions construing comparable language in Title VI of the Civil Rights Act of 1964 as implicitly authorizing a judicial remedy, notwithstanding the fact that the statute expressly included a quite different remedy. We held that even under the "strict approach" dictated by Cort v. Ash, "our evaluation of congressional action in 1972 must take into account its contemporary legal context." 441 U.S., at 698-699, 99 S.Ct., at 1958. See California v. Sierra Club, 451 U.S. 287, 296, n.7, 101 S.Ct. 1775, 1780, n.7, 68 L.Ed.2d 101 (1981). 39 Prior to the comprehensive amendments to the CEA enacted in 1974, the federal courts routinely and consistently had recognized an implied private cause of action on behalf of plaintiffs seeking to enforce and to collect damages for violation of provisions of the CEA or rules and regulations promulgated pursuant to the statute.62 The routine recognition of a private remedy under the CEA prior to our decision in Cort v. Ash was comparable to the routine acceptance of an analogous remedy under the Securities Exchange Act of 1934.63 The Court described that remedy in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 730, 95 S.Ct. 1917, 1922, 44 L.Ed.2d 539 (1975) (footnote omitted): 40 "Despite the contrast between the provisions of Rule 10b-5 and the numerous carefully drawn express civil remedies provided in the Acts of both 1933 and 1934, it was held in 1946 by the United States District Court for the Eastern District of Pennsylvania that there was an implied private right of action under the Rule. Kardon v. National Gypsum Co., 69 F.Supp. 512. This Court had no occasion to deal with the subject until 25 years later, and at that time we confirmed with virtually no discussion the overwhelming consensus of the District Courts and Courts of Appeals that such a cause of action did exist. Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6, 13 n.9 [92 S.Ct. 165, 169 n.9, 30 L.Ed.2d 128] (1971); Affiliated Ute Citizens v. United States, 406 U.S. 128, 150-154 [92 S.Ct. 1456, 1470-72, 31 L.Ed.2d 741] (1972). Such a conclusion was, of course, entirely consistent with the Court's recognition in J.I. Case Co. v. Borak, 377 U.S. 426, 432 [84 S.Ct. 1555, 1559, 12 L.Ed.2d 423] (1964), that private enforcement of Commission rules may '[provide] a necessary supplement to Commission action.' " 41 Although the consensus of opinion concerning the existence of a private cause of action under the CEA was neither as old nor as overwhelming as the consensus concerning Rule 10b-5, it was equally uniform and well understood. This Court, as did other federal courts and federal practitioners, simply assumed that the remedy was available. The point is well illustrated by this Court's opinion in Chicago Mercantile Exchange v. Deaktor, 414 U.S. 113, 94 S.Ct. 466, 38 L.Ed.2d 344 (1973), which disposed of two separate actions in which private litigants alleged that an exchange had violated § 9(b) of the CEA by engaging in price manipulation and § 5a by failing both to enforce its own rules and to prevent market manipulation.64 The Court held that the judicial proceedings should not go forward without first making an effort to invoke the jurisdiction of the Commodity Exchange Commission, but it did not question the availability of a private remedy under the CEA.65 42 In view of the absence of any dispute about the proposition prior to the decision of Cort v. Ash in 1975, it is abundantly clear that an implied cause of action under the CEA was a part of the "contemporary legal context" in which Congress legislated in 1974. Cf. Cannon v. University of Chicago, 441 U.S., at 698-699, 99 S.Ct., at 1958. In that context, the fact that a comprehensive reexamination and significant amendment of the CEA left intact the statutory provisions under which the federal courts had implied a cause of action is itself evidence that Congress affirmatively intended to preserve that remedy.66 A review of the legislative history of the statute persuasively indicates that preservation of the remedy was indeed what Congress actually intended. VI 43 Congress was, of course, familiar not only with the implied private remedy but also with the long history of federal regulation of commodity futures trading.67 From the enactment of the original federal legislation, Congress primarily has relied upon the exchanges to regulate the contract markets. The 1922 legislation required for designation as a contract market that an exchange "provide for" the making and filing of reports and records, the prevention of dissemination of false or misleading reports, the prevention of price manipulation and market cornering, and the enforcement of Commission orders.68 To fulfill these conditions, the exchanges promulgated rules and regulations, but they did not always enforce them. In 1968, Congress attempted to correct this flaw in the self-regulation concept by enacting § 5a(8), 7 U.S.C. § 7a(8), which requires the exchanges to enforce their own rules.69 44 The enactment of § 5a(8), coupled with the recognition by the federal courts of an implied private remedy for violations of the CEA, gave rise to a new problem. As representatives of the exchanges complained during the hearings preceding the 1974 amendments,70 the exchanges were being sued for not enforcing their rules. The complaint was taken seriously because it implicated the self-regulation premise of the CEA: 45 "In the few years [§ 5a(8) ] has been in the present Commodity Exchange Act, there is growing evidence to indicate that, as opposed to strengthening the self-regulatory concept in present law, such a provision, coupled with only limited federal authority to require the exchanges to make and issue rules appropriate to enforcement of the Act—may actually have worked to weaken it. With inadequate enforcement personnel the Committee was informed that attorneys to several boards of trade have been advising the boards to reduce —not expand exchange regulations designed to insure fair trading, since there is a growing body of opinion that failure to enforce the exchange rules is a violation of the Act which will support suits by private litigants." House Report, at 46 (emphasis in original).71 46 Congress could have removed this impediment to exchange rulemaking by eliminating the implied private remedy,72 but it did not follow that course. Rather, it solved the problem by authorizing the new Commodity Futures Trading Commission to supplement exchange rules.73 Congress thereby corrected the legal mechanism of self-regulation while preserving a significant incentive for the exchanges to obey the law. Only this course was consistent with the expressed purpose of the 1974 legislation, which was to "amend the Commodity Exchange Act to strengthen the regulation of futures trading."74 47 Congress in 1974 created new procedures through which traders might seek relief for violations of the CEA, but the legislative evidence indicates that these informal procedures were intended to supplement rather than supplant the implied judicial remedy. These procedures do not substitute for the private remedy either as a means of compensating injured traders or as a means of enforcing compliance with the statute. The reparations procedure established by § 14 is not available against the exchanges,75 yet we may infer from the above analysis that Congress viewed private litigation against exchanges as a valuable component of the self-regulation concept. Nor is that procedure suited for the adjudication of all other claims. The Commission may, but need not, investigate a complaint, and may, but need not, serve the respondent with the complaint. If the Commission permits the complaint to issue, it need not provide an administrative hearing if the claim does not exceed $5,000. The arbitration procedure mandated by § 5a(11) is even narrower in scope. Only members and employees of the contract market are subject to the procedure, and the use of the procedure by a trader is voluntary and is limited to claims of less than $15,000. There are other indications in the legislative history that the two sections were not intended to be exclusive of the implied judicial remedy. It was assumed by hearings witnesses that the informal procedures were supplementary.76 Indeed, it was urged that complainants be put to the choice between informal and judicial actions.77 A representative of one exchange urged Congress to place a dollar limit on claims arbitrable under § 5a(11) because there was an "economic impediment to Court litigation" only with small claims,78 and such a limit was enacted. Chairman Poage described the newly enacted informal procedures as "new customer protection features,"79 and Senator Talmadge, the Chairman of the Senate Committee on Agriculture and Forestry, stated that the reparations procedure was "not intended to interfere with the courts in any way," although he hoped that the burden on the courts would be "somewhat lighten[ed]" by the availability of the informal actions.80 48 The late addition of a saving clause in § 2(a)(1) provides direct evidence of legislative intent to preserve the implied private remedy federal courts had recognized under the CEA. Along with an increase in powers, the Commission was given exclusive jurisdiction over commodity futures trading. The purpose of the exclusive-jurisdiction provision in the bill passed by the House81 was to separate the functions of the Commission from those of the Securities and Exchange Commission and other regulatory agencies.82 But the provision raised concerns that the jurisdiction of state and federal courts might be affected. Referring to the treble damages action provided in another bill that he and Senator McGovern had introduced, Senator Clark pointed out: "[T]he House bill not only does not authorize them, but section 201 of that bill may prohibit all court actions. The staff of the House Agriculture Committee has said that this was done inadvertently and they hope it can be corrected in the Senate."83 It was. The Senate added a saving clause to the exclusive-jurisdiction provision, providing that "[n]othing in this section shall supersede or limit the jurisdiction conferred on courts of the United States or any State."84 The Conference accepted the Senate amendment.85 49 The inference that Congress intended to preserve the preexisting remedy is compelling. As the Solicitor General argues on behalf of the Commission as amicus curiae, the private cause of action enhances the enforcement mechanism fostered by Congress over the course of 60 years. In an enactment purporting to strengthen the regulation of commodity futures trading, Congress evidenced an affirmative intent to preserve this enforcement tool.86 It removed an impediment to exchange rulemaking caused in part by the implied private remedy not by disapproving that remedy but rather by giving the Commission the extraordinary power to supplement exchange rules. And when several Members of Congress expressed a concern that the exclusive-jurisdiction provision, which was intended only to consolidate federal regulation of commodity futures trading in the Commission, might be construed to affect the implied cause of action as well as other court actions, Congress acted swiftly to dispel any such notion. Congress could have made its intent clearer only by expressly providing for a private cause of action in the statute. In the legal context in which Congress acted, this was unnecessary. 50 In view of our construction of the intent of the Legislature there is no need for us to "trudge through all four of the factors when the dispositive question of legislative intent has been resolved." See California v. Sierra Club, 451 U.S., at 302, 101 S.Ct., at 1783 (REHNQUIST, J., concurring in judgment). We hold that the private cause of action under the CEA that was previously available to investors survived the 1974 amendments. VII 51 In addition to their principal argument that no private remedy is available under the CEA, petitioners also contend that respondents, as speculators, may not maintain such an action and that, in any event, they may not sue an exchange or futures commission merchants for their alleged complicity in the price manipulation effected by a group of short traders. To evaluate these contentions, we must assume the best possible case for the speculator in terms of proof of the statutory violations, the causal connection between the violations and the injury, and the amount of damages. It is argued that no matter how deliberate the defendants' conduct, no matter how flagrant the statutory violation, and no matter how direct and harmful its impact on the plaintiffs, the federal remedy that is available to some private parties does not encompass these actions. 52 The cause of action asserted in No. 80-203 is a claim that respondents' broker violated the prohibitions against fraudulent and deceptive conduct in § 4b. In the other three cases the respondents allege violations of several other sections of the CEA that are designed to prevent price manipulation.87 We are satisfied that purchasers and sellers of futures contracts have standing to assert both types of claims. 53 The characterization of persons who invest in futures contracts as "speculators" does not exclude them from the class of persons protected by the CEA. The statutory scheme could not effectively protect the producers and processors who engage in hedging transactions without also protecting the other participants in the market whose transactions over exchanges necessarily must conform to the same trading rules. This is evident from the text of the statute. The antifraud provision, § 4b, 7 U.S.C. § 6b, by its terms makes it unlawful for any person to deceive or defraud any other person in connection with any futures contract. This statutory language does not limit its protection to hedging transactions; rather, its protection encompasses every contract that "is or may be used for (a) hedging . . . or (b) determining the price basis of any transaction . . . in such commodity." See n.18, supra. Since the limiting language defines the character of the contracts that are covered, and since futures contracts traded over a regulated exchange are fungible, it is manifest that all such contracts may be used for hedging or price basing, even if the parties to a particular futures trade may both be speculators. In other words, all purchasers or sellers of futures contracts—whether they be pure speculators or hedgers—necessarily are protected by § 4b.88 54 The legislative history quite clearly indicates that Congress intended to protect all futures traders from price manipulation and other fraudulent conduct violative of the statute. It is assumed, of course, that federal regulation of futures trading benefits the entire economy; a sound futures market tends to reduce retail prices of the underlying commodities. The immediate beneficiaries of a healthy futures market are the producers and processors of commodities who can minimize the risk of loss from volatile price changes on the cash market by hedging on the futures market.89 As the House Report on the 1974 amendments explained at length,90 their ability to engage in hedging depends on the availability of investors willing to assume or to share the hedger's risk in the hope of making a profit. The statutory proscriptions against price manipulation and other fraudulent practices were intended to ensure that hedgers would sell or purchase the underlying commodities at a fair price and that legitimate investors would view the assumption of the hedger's risk as a fair investment opportunity. Although the speculator has never been the favorite of Congress, Congress recognized his crucial role in an effective and orderly futures market and intended him to be protected by the statute as much as the hedger. Judge Friendly's discussion of the legislative history, see 638 F.2d at 304-307, amply supports his observation that "[i]t is almost self-evident that legislation regulating future trading was for the 'especial benefit' of futures traders," id., at 306-307. 55 Although § 4b compels our holding that an investor defrauded by his broker may maintain a private cause of action for fraud, petitioners in the three manipulation cases correctly point out that the other sections of the CEA that they are accused of violating are framed in general terms and do not purport to confer special rights on any identifiable class of persons. Under Cort v. Ash, the statutory language would be insufficient to imply a private cause of action under these sections.91 But we are not faced with the Cort v. Ash inquiry.92 We have held that Congress intended to preserve the pre-existing remedy; to determine whether the pre-existing remedy encompasses respondents' actions, we must turn once again to the law as it existed in 1974. 56 Although the first case in which a federal court held that a futures trader could maintain a private action was a fraud claim based on § 4b,93 subsequent decisions drew no distinction between an action against a broker and an action against an exchange.94 When Congress acted in 1974, courts were recognizing causes of action on behalf of investors against exchanges. The Deaktor case, which came before this Court, is an example.95 Moreover, these actions against exchanges were well recognized. During the hearings on the 1974 amendments to the CEA, a complaint voiced by representatives of the exchanges was that the exchanges were being sued for not enforcing their rules. Congress responded to the complaint by authorizing the Commission to supplement exchange rules because, we have inferred,96 Congress wished to preserve the private cause of action as a tool for enforcement of the self-regulation concept of the CEA. 57 To the extent that the Cort v. Ash inquiry97 is relevant to the question now before us—whether respondents' claims can be pursued under the implied cause of action that Congress preserved it is noteworthy that the third and fourth factors of that inquiry support an affirmative answer. As the Solicitor General has argued on behalf of the Commodities Futures Trading Commission, it is "consistent with the underlying purposes of the legislative scheme to imply such a remedy."98 Moreover, there is no basis for believing that state law will afford an adequate remedy against an exchange. On the contrary, throughout the long history of federal regulation of futures trading it has been federal law that has imposed a stringent duty upon exchanges to police the trading activities in the markets that they are authorized by statute to regulate.99 Since the amendments to the original legislation regulating futures trading consistently have strengthened that regulatory scheme, the elimination of a significant enforcement tool would clash with this legislative pattern. We therefore may not simply assume that Congress silently withdrew the pre-existing private remedy against exchanges.100 58 Having concluded that exchanges can be held accountable for breaching their statutory duties to enforce their own rules prohibiting price manipulation, it necessarily follows that those persons who are participants in a conspiracy to manipulate the market in violation of those rules are also subject to suit by futures traders who can prove injury from these violations.101 As we said regarding the analogous Rule 10b-5, "privity of dealing or even personal contact between potential defendant and potential plaintiff is the exception and not the rule." Blue Chip Stamps v. Manor Drug Stores, 421 U.S., at 745, 95 S.Ct., at 1929. Because there is no indication of legislative intent that privity should be an element of the implied remedy under the CEA,102 we are not prepared to fashion such a limitation. As has been the case with the Rule 10b-5 action,103 unless and until Congress acts, the federal courts must fill in the interstices of the implied cause of action under the CEA. The elements of liability, of causation, and of damages are likely to raise difficult issues of law and proof in litigation arising from the massive price manipulation that is alleged to have occurred in the May 1976 futures contract in Maine potatoes. We express no opinion about any such question. We hold only that a cause of action exists on behalf of respondents against petitioners. 59 The judgments of the Courts of Appeals are affirmed. 60 It is so ordered. 61 Justice POWELL, with whom The Chief Justice, Justice REHNQUIST, and Justice O'CONNOR join, dissenting. 62 The Court today holds that Congress intended the federal courts to recognize implied causes of action under five separate provisions of the Commodity Exchange Act (CEA), 7 U.S.C. § 1 et seq. (1976 ed. and Supp.IV). The decision rests on two theories. First, the Court relies on fewer than a dozen cases in which the lower federal courts erroneously upheld private rights of action in the years prior to the 1974 amendments to the CEA. Reasoning that these mistaken decisions constituted "the law" in 1974, the Court holds that Congress must be assumed to have endorsed this path of error when it failed to amend certain sections of the CEA in that year. This theory is incompatible with our constitutional separation of powers, and in my view it is without support in logic or in law. Additionally—whether alternatively or cumulatively is unclear—the Court finds that Congress in 1974 "affirmatively" manifested its intent to "preserve" private rights of action by adopting particular amendments to the CEA. This finding is reached without even token deference to established tests for discerning congressional intent. 63 * In determining whether an "implied" cause of action exists under a federal statute, "what must ultimately be determined is whether Congress intended to create the private remedy asserted." Transamerica Mortgage Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979). See Middlesex County Sewerage Auth. v. National Sea Clammers Assn., 453 U.S. 1, 13, 101 S.Ct. 2615, 2622, 69 L.Ed.2d 435 (1981) (Sea Clammers).1 In these cases private rights of action are asserted under five separate provisions of the CEA—two of them passed initially in 1922, two in 1936, and one adopted for the first time in 1968.2 The Court does not argue that Congress in 1922, in 1936, or in 1968, intended to authorize private suits for damages in the federal courts. In 1936—the year in which the CEA was adopted as the successor statute to the Grain Futures Act3—Congress did not even provide for federal-court jurisdiction to enforce the CEA.4 And the Court adduces no evidence that congressional views had changed by 1968. 64 If the Court focused its implication inquiry on the intent of the several Congresses that enacted the statutory provisions involved in these cases, it thus is indisputable that the plaintiffs would have no claim. "The dispositive question" in implication cases is whether Congress intended to create the right to sue for damages in federal court. "Having answered that question in the negative, our inquiry [would be] at an end." TAMA, supra, at 24, 100 S.Ct., at 249. See Sea Clammers, supra, at 13, 101 S.Ct., at 2622. 65 The Court today asserts its fidelity to these principles but shrinks from their application. It does so in the first instance by invoking a novel legal theory—one that relies on congressional inaction and on erroneous decisions by the lower federal courts. In 1967 a Federal District Court in the Northern District of Illinois upheld the existence of a private right of action under one section of the CEA. Goodman v. H. Hentz & Co., 265 F.Supp. 440 (1967). Relying on state common-law principles set forth in § 286 of the Restatement of Torts (1938), Goodman ruled that the "complete absence of provision for private civil actions in the Commodity Exchange Act," 265 F.Supp., at 447, was not decisive: 66 " 'Implied rights of action are not contingent upon statutory language which affirmatively indicates that they are intended. On the contrary, they are implied unless the legislation evidences a contrary intention. Brown v. Bullock, D.C., 194 F.Supp. 207, 224, aff'd on other grounds, 2 Cir., 294 F.2d 415; cited in Wheeldin v. Wheeler, 373 U.S. 647 at 661, 662 [83 S.Ct. 1441 at 1450, 10 L.Ed.2d 605] . . . (Brennan, J., dissenting).' 67 "There is no indication in the Commodity Exchange Act that Congress intended not to allow private persons injured by violations access to the federal courts." Ibid. (emphasis added). 68 The Court does not dispute that the Goodman court erred. The Goodman court placed primary emphasis on inquiring whether Congress had created a regulatory system for the benefit of the plaintiffs' class. As the court's citation of the Restatement of Torts made apparent, this inquiry has been thought appropriate for common-law courts of general jurisdiction. But our cases establish that it is not appropriate for federal courts possessed only of limited jurisdiction. On the contrary, we have established that an "argument in favor of implication of a private right of action based on tort principles . . . is entirely misplaced." Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979). "The dispositive question [is] whether Congress intended to create any such [private damages] remedy." TAMA, 444 U.S., at 24, 100 S.Ct., at 249 (emphasis added). The Goodman court did not even ask this question.5 69 About 10 cases—none decided by this Court6—followed Goodman's mistake. Seven of these found Goodman dispositive without further comment.7 Three remaining cases8 added to Goodman's analysis only by quoting differing portions of one sentence discussing the CEA's purpose.9 This single sentence "leaves no doubt that Congress intended to [benefit the named classes of persons by enacting the CEA] . . . . But whether Congress intended additionally that [the CEA] provisions would be enforced through private litigation is a different question." TAMA, supra, at 17-18, 100 S.Ct., at 245-246. Because these cases ignore this "different question," they fail to rectify Goodman's fundamental legal error—that of basing a finding of an implied cause of action under a federal statute on common-law principles. "There is, of course, 'no federal general common law.' " Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640, 101 S.Ct. 2061, 2067, 68 L.Ed.2d 500 (1981), quoting Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). 70 To the Court, however, this all is irrelevant. The Goodman line may have been wrong. The decisions all may have been rendered by lower federal courts. Goodman nevertheless was "the law" in 1974. Moreover, the Court reasons, Congress must be presumed to have known of Goodman and its progeny, see ante, at 378-382; and it could have changed the law if it did not like it, see ante, at 381-382 . Yet Congress, the Court continues, "left intact the statutory provisions under which the federal courts had implied a cause of action." Ante, at 381. This legislative inaction, the Court concludes, signals a conscious intent to "preserve" the right of action that Goodman mistakenly had created. Ante, at 382. And this unexpressed "affirmative intent" of Congress now is binding on this Court, as well as all other federal courts.10 71 This line of reasoning is inconsistent with fundamental premises of our structure of government. Fewer than a dozen district courts wrongly create a remedy in damages under the CEA; Congress fails to correct the error; and congressional silence binds this Court to follow the erroneous decisions of the district courts and courts of appeals. The Court today does not say thatGoodman was correctly decided. Congress itself surely would reject emphatically the Goodman view that federal courts are free to hold, as a general rule of statutory interpretation, that private rights of action are to be implied unless Congress "evidences a contrary intention." Yet today's decision is predicated in major part on this view. 72 It is not surprising that the Court—having propounded this novel theory that congressional intent can be inferred from its silence, and that legislative inaction should achieve the force of law—would wish to advance an additional basis for its decision. II 73 In 1974 Congress rewrote much of the CEA. It did not, however, re-enact or even amend most of the provisions under which the Court today finds implied rights of action. But the Court does not pause over the question how Congress might legislate a right of action merely by remaining silent after the lower federal courts have misstated the law.11 Instead it argues that at least some of the 1974 amendments evidenced an affirmative congressional intent to "preserve" implied rights of action under the CEA. Ante, at 381-382. Fairly read, the evidence fails to sustain this argument. 74 In support of its argument the Court advances no evidence of the kinds generally recognized as most probative of congressional intent. It cites no statutory language stating an intent to preserve judicially created rights. It offers no legislative materials citing Goodman or any of its progeny in approving tones. In the hundreds of pages of Committee hearings and Reports that preceded the 1974 amendments, the Court is unable to discover even a single clear remark to the effect that the 1974 amendments would create or preserve private rights of action. 75 The Court relies instead on three unrelated additions to the CEA that were adopted by Congress in 1974. First, the Court places weight on the enactment of § 8a(7), 7 U.S.C. § 12a(7), which authorized the Commodity Futures Trading Commission to supplement the trading regulations established by individual commodity exchanges. Ante, at 384. The accompanying House Report, H.R. Rep. No. 93-975, p. 46 (1974), explained that the CFTC needed this power to ensure that the local exchanges would establish adequate safeguards. According to the Report, "attorneys to several boards of trade have been advising the boards to reduce—not to expand exchange regulations . . ., since there is a growing body of opinion that failure to enforce the exchange rules is a violation of the Act which will support suits by private litigants." From this observation the Court purports to infer that Congress must have approved of the Goodman line of cases. 76 This single quotation, however, is entirely neutral as to approval or disapproval. Moreover, there is persuasive evidence on the face of the statute that Congress did not contemplate a judicial remedy for damages against the exchanges. The 1974 amendments explicitly subjected the exchanges to fines and other sanctions for nonenforcement of their own rules. See § 6b, 7 U.S.C. § 13a. But the statute specifies that fines may not exceed $100,000 per violation, ibid., and that the Commission must determine whether the amount of any fine will impair an exchange's ability to perform its functions. A private damages action would not be so limited and therefore would expose the exchanges to greater liability than Congress evidently intended. 77 The second statutory change cited by the Court actually undercuts rather than supports its case. The Court notes that the 1974 Congress enacted two sections creating procedures for reimbursing victims of CEA violations.12 Ante, at 384-385. In its view these sections evidence a further intent to enhance the availability of relief in damages. Yet the Court suggests no reason why the 1974 Congress would have enacted these duplicative channels for damages recovery if it intended at the same time to approve the implied private damages actions permitted by Goodman.13 Rather, the Court flatly contravenes settled rules for the identification of congressional intent. "[I]t is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it." TAMA, 444 U.S., at 19, 100 S.Ct., at 246.14 "In the absence of strong indicia of a contrary congressional intent, we are compelled to conclude that Congress provided precisely the remedies it considered appropriate." Sea Clammers, 453 U.S., at 15, 101 S.Ct., at 2623. 78 The Court finally relies upon congressional enactment of a so-called jurisdictional saving clause as part of the 1974 amendments: 79 "Nothing in this section shall supersede or limit the jurisdiction conferred on courts of the United States or any State." § 201 (amending § 2 of the Act), 88 Stat. 1395, codified at 7 U.S.C. § 2 (emphasis added). 80 Ante, at 386-387. 81 By its terms the saving clause simply is irrelevant to the issue at hand: whether a cause of action should be implied under particular provisions of the CEA. Where judicially cognizable claims do exist, the saving clause makes clear that federal courts retain their jurisdiction. But it neither creates nor preserves any substantive right to sue for damages. And it is settled by our cases that "[t]he source of plaintiffs' rights must be found, if at all, in the substantive provisions of the . . . Act which they seek to enforce, not in the jurisdictional provision." Touche Ross & Co. v. Redington, 442 U.S., at 577, 99 S.Ct., at 2489. Cf. Sea Clammers, supra, at 15-17, 101 S.Ct., at 2626 (refusing to imply right of action even from a substantive "saving clause").15 B 82 Despite its imaginative use of other sources, the Court neglects the only unambiguous evidence of Congress' intent respecting private actions for civil damages under the CEA. That evidence is a chart that appears in the record of Senate Committee hearings.16 This chart compares features of four proposed bills with the "Present Commodities Exchange Act." It evidently was prepared by the expert Committee staff advising the legislators who considered the 1974 amendments. 83 The chart is detailed. It occupies five pages of the hearing record. Comparing the feature of "civil money penalties" between the different proposed bills, however, the chart does not list "implied damages actions" under the existing Act. Rather, it says there are "none." Neither does the chart make any reference to implied private damages actions under any of the four proposed amending bills. 84 Under these circumstances, the most that the Court fairly can claim to have shown is that the 1974 Congress did not disapprove Goodman and its progeny. There simply is no persuasive evidence of affirmative congressional intent to recognize rights through the enactment of statutory law, even under the Court's unprecedented theory of congressional ratification by silence of judicial error. III 85 The Court's holding today may reflect its view of desirable policy. If so, this view is doubly mistaken. 86 First, modern federal regulatory statutes tend to be exceedingly complex. Especially in this context, courts should recognize that intricate policy calculations are necessary to decide when new enforcement measures are desirable additions to a particular regulatory structure. Judicial creation of private rights of action is as likely to disrupt as to assist the functioning of the regulatory schemes developed by Congress. See, e.g., Universities Research Assn., Inc. v. Coutu, 450 U.S. 754, 782-784, 101 S.Ct. 1451, 1467-1468, 67 L.Ed.2d 662 (1981). 87 Today's decision also is disquieting because of its implicit view of the judicial role in the creation of federal law. The Court propounds a test that taxes the legislative branch with a duty to respond to opinions of the lower federal courts. The penalty for silence is the risk of having those erroneous judicial opinions imputed to Congress itself—on the basis of its presumptive knowledge of the "contemporary legal context." Ante, at 379. Despite the Court's allusion to the lawmaking powers of courts at common law, see ante, at 374-377, this view is inconsistent with the theory and structure of our constitutional government. 88 For reasons that I have expressed before, I remain convinced that "we should not condone the implication of any private right of action from a federal statute absent the most compelling evidence that Congress in fact intended such an action to exist." Cannon v. University of Chicago, 441 U.S. 677, 749, 99 S.Ct. 1946, 1985, 60 L.Ed.2d 560 (1979) (POWELL, J., dissenting).17 Here the evidence falls far short of this constitutionally appropriate standard. 89 Accordingly, I respectfully dissent. APPENDIX TO OPINION OF POWELL J., DISSENTING 90 HUMPHREY McGOVERN HART Page 5 PRESENT 91 FEATURES H. R. 13113 S. 2485 S. 2578 S. 2837, COMMODITY 92 AS AMENDED EXCHANGE ACT 93 Civil money Permits civil money Permits money penalties Permits money penalties Civil actions may be None. 94 penalties penalties up to of $1,000 to $100,000 but up to $100,000 and provides brought by individuals 95 $100,000. only for failure to comply criteria for assessment. for treble damages. (Sec 212) with a Commission order to Civil actions may be brought (Sec. 505) 96 cease and desist from by individuals 97 for treble Provides for civil 98 violating the Act. damages. 99 money penalties for 100 (Sec. 7) (Sec. 16) 101 violation of a final 102 order. 103 (Sec. 504) Provides Commission with 104 authority to 105 directly 106 impose a fine of 107 up to 108 $100,000, issue 109 a cease 110 and desist 111 order, require 112 restitution, 113 suspend reg- 114 istration, and 115 grant other 116 relief that a 117 court of 118 equity would 119 have the 120 right to grant. 121 (Sec. 406) 122 Commodity Futures Commission Act: Hearings on S. 2485, S. 2578, S. 2837 and H.R. 13113 before the Sentate Committee on Agriculture and Forestry, 93d Cong., 2d Sess., 194 (1974). 1 The history of the CEA includes six major legislative enactments. The Future Trading Act, 42 Stat. 187 (1921), was declared unconstitutional in Hill v. Wallace, 259 U.S. 44, 42 S.Ct. 453, 66 L.Ed. 822 (1922), and was superseded by the Grain Futures Act, 42 Stat. 998 (1922). Major amendments to the operative statute followed in the Commodity Exchange Act, ch. 545, 49 Stat. 1491 (1936), the Act of Feb. 19, 1968, 82 Stat. 26, the Commodity Futures Trading Commission Act of 1974, 88 Stat. 1389, and the Futures Trading Act of 1978, 92 Stat. 865. The 1936 amendments changed the name of the operative statute to the CEA; citations to the Grain Futures Act, the original legislation, accordingly will refer to the CEA and not to the original name of the legislation. Citations to amending legislation will refer to the date of the amendments, in order not to confuse the operative statute and the 1936 amendments, both of which are entitled the Commodity Exchange Act. For a discussion of this history of federal regulation, see infra, at 360-367. 2 H.R.Rep. No. 93-975, p. 1 (1974), U.S.Code Cong. & Admin.News 1974, p. 5843 (hereinafter House Report). 3 622 F.2d 216 (1980). Accord, Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Goldman, 593 F.2d 129, 133, n.7 (CA8) (dictum), cert. denied, 444 U.S. 838, 100 S.Ct. 76, 62 L.Ed.2d 50 (1979); Hirk v. Agri-Research Council, Inc., 561 F.2d 96, 103, n.8 (CA7 1977). See also Master Commodities, Inc. v. Texas Cattle Management Co., 586 F.2d 1352, 1355 (CA10 1978) (assuming that a private right of action exists). 4 Leist v. Simplot, 638 F.2d 283 (1980). 5 Rivers v. Rosenthal & Co., 634 F.2d 774 (1980), cert. pending, No. 80-1542. 6 Our understanding of the futures trading business and of the facts is gleaned primarily from the congressional Reports relating to the 1974 amendments to the CEA, the opinions of the Courts of Appeals, and the pleadings. 7 See House Report, at 33-34. 8 See n.11, infra. The ability of producers and processors to hedge against risks of price changes is only one of the advantages of futures trading. Other advantages are described at some length in the House Report, at 132-134. 9 The House Report, at 149, states that only about "3% of all futures contracts traded are normally settled by an actual delivery." 10 Of course, when a hedger takes a long or a short position that is greater than its interest in the commodity itself, it is to that extent no longer a hedger, but a speculator. 11 "Broadly speaking, futures traders fall into two general classifications, i.e. 'trade' hedging customers, and speculators. All orders which reach the trading floor originate with one or the other group of traders. The 'trade' customer is the hedger who seeks, at low cost, to protect himself or his company against possible loss due to adverse price fluctuations in the market place. Speculators, on the other hand, embrace all representatives of the general public, including some institutions, plus floor scalpers and position traders, who seek financial gain by taking positions in volatile markets. The principal role of the speculator in the markets is to take the risks that the hedger is unwilling to accept. The opportunity for profit makes the speculator willing to take those risks. The activity of speculators is essential to the operation of a futures market in that the composite bids and offers of large numbers of individuals tend to broaden a market, thus making possible the execution with minimum price disturbance of the larger trade hedging orders. By increasing the number of bids and offers available at any given price level, the speculator usually helps to minimize price fluctuations rather than to intensify them. Without the trading activity of the speculative fraternity, the liquidity, so badly needed in futures markets, simply would not exist. Trading volume would be restricted materially since, without a host of speculative orders in the trading ring, many larger trade orders at limit prices would simply go unfilled due to the floor broker's inability to find an equally large but opposing hedge order at the same price to complete the match." House Report, at 138. 12 Grain was defined to include "wheat, corn, oats, barley, rye, flax, and sorghum." § 2(a) of the CEA, 42 Stat. 998, codified as amended, 7 U.S.C. § 2 (1976 ed., Supp.IV). 13 "It was an effort by Congress, through taxing at a prohibitive rate sales of grain for future delivery, to regulate such sales on boards of trade by exempting them from the tax if they would comply with the congressional regulations." Chicago Board of Trade v. Olsen, 262 U.S. 1, 31, 43 S.Ct. 470, 475, 67 L.Ed. 839 (1923). 14 "The Grain Futures Act which is now before us differs from the Future Trading Act in having the very features the absence of which we held . . . prevented our sustaining the Future Trading Act. [T]he act only purports to regulate interstate commerce and sales of grain for future delivery on boards of trade because it finds that by manipulation they have become a constantly recurring burden and obstruction to that commerce." Id., at 32, 43 S.Ct., at 475. Congress replaced the prohibitive tax on futures trading not conducted on a designated contract market with a direct prohibition of such trading. See § 4 of the CEA, 42 Stat. 999-1000, codified as amended, 7 U.S.C. § 6. 15 § 5(c) of the CEA, 42 Stat. 1000, codified as amended, 7 U.S.C. § 7(c). 16 § 5(d) of the CEA, 42 Stat. 1000. Section 5(d), codified as amended, 7 U.S.C. § 7(d), requires as a condition of designation that the governing board of the board of trade "provid[e] for the prevention of manipulation of prices and the cornering of any commodity by the dealers or operators upon such board." The Secretary of Agriculture also was authorized to proceed directly against a violator of these and other provisions of the CEA by suspending a violator's trading privileges. § 6(b) of the CEA, 42 Stat. 1002, codified as amended, 7 U.S.C. § 9. Moreover, misdemeanor penalties were authorized for violations of certain provisions of the CEA. § 9 of the CEA, 42 Stat. 1003, codified as amended, 7 U.S.C. § 13 (1976 ed., Supp.IV). The penalties subsequently have been increased. Today, § 9(b) of the CEA, 7 U.S.C. § 13(b) (1976 ed., Supp. IV), provides in pertinent part: "It shall be a felony punishable by a fine of not more than $500,000 or imprisonment for not more than five years, or both, together with the costs of prosecution, for any person to manipulate or attempt to manipulate the price of any commodity in interstate commerce, or for future delivery on or subject to the rules of any contract market, or to corner or attempt to corner any such commodity. . . . Notwithstanding the foregoing, in the case of any violation described in the foregoing sentence by a person who is an individual, the fine shall not be more than $100,000, together with the costs of prosecution." 17 The 1936 amendments extended coverage to cotton, rice, butter, eggs, and Irish potatoes. § 3(a) of the 1936 amendments, 49 Stat. 1491 (amending § 2(a) of the CEA, codified as subsequently amended, 7 U.S.C. § 2 (1976 ed., Supp.IV)). 18 § 5 of the 1936 amendments, 49 Stat. 1493 (adding § 4b of the CEA). Section 4b, codified as amended, 7 U.S.C. § 6b, provides in pertinent part: "It shall be unlawful (1) for any member of a contract market, or for any correspondent, agent, or employee of any member, in or in connection with any order to make, or the making of, any contract of sale of any commodity in interstate commerce, made, or to be made, on or subject to the rules of any contract market, for or on behalf of any other person, or (2) for any person, in or in connection with any order to make, or the making of, any contract of sale of any commodity for future delivery, made, or to be made, on or subject to the rules of any contract market, for or on behalf of any other person if such contract for future delivery is or may be used for (a) hedging any transaction in interstate commerce in such commodity or the products or by-products thereof, or (b) determining the price basis of any transaction in interstate commerce in such commodity, or (c) delivering any such commodity sold, shipped, or received in interstate commerce for the fulfillment thereof— "(A) to cheat or defraud or attempt to cheat or defraud such other person; "(B) willfully to make or cause to be made to such other person any false report or statement thereof, or willfully to enter or cause to be entered for such person any false record thereof; "(C) willfully to deceive or attempt to deceive such other person by any means whatsoever in regard to any such order or contract or the disposition or execution of any such order or contract, or in regard to any act of agency performed with respect to such order or contract for such person; or "(D) to bucket such order, or to fill such order by offset against the order or orders of any other person, or willfully and knowingly and without the prior consent of such person to become the buyer in respect to any selling order of such person, or become the seller in respect to any buying order of such person." 19 § 5 of the 1936 amendments, 49 Stat. 1492 (adding § 4a of the CEA). Section 4a, codified as amended, 7 U.S.C. § 6a, provides in pertinent part: "(1) Excessive speculation in any commodity under contracts of sale of such commodity for future delivery made on or subject to the rules of contract markets causing sudden or unreasonable fluctuations or unwarranted changes in the price of such commodity, is an undue and unnecessary burden on interstate commerce in such commodity. For the purpose of diminishing, eliminating, or preventing such burden, the commission shall, from time to time, after due notice and opportunity for hearing, by order, proclaim and fix such limits on the amounts of trading which may be done or positions which may be held by any person under contracts of sale of such commodity for future delivery on or subject to the rules of any contract market as the commission finds are necessary to diminish, eliminate, or prevent such burden." 20 § 5 of the 1936 amendments, 49 Stat. 1494-1495 (adding §§ 4d(1) and 4e of the CEA, codified as amended, 7 U.S.C. §§ 6d(1) and 6e (1976 ed. and Supp.IV)). The 1936 amendments also authorized the commission to order an exchange to cease and desist from violating the CEA or any rules promulgated thereunder in lieu of revoking its designation as a contract market. § 9 of the 1936 amendments, 49 Stat. 1500 (adding § 6b of the CEA, codified as amended, 7 U.S.C. § 13a (1976 ed., Supp.IV)). 21 Livestock and livestock products were included in the definition of commodity. § 1(a) of the 1968 amendments, 82 Stat. 26 (amending § 2(a) of the CEA, codified as subsequently amended, 7 U.S.C. § 2 (1976 ed., Supp.IV)). 22 § 23 of the 1968 amendments, 82 Stat. 33 (adding § 8a(7) of the CEA, codified as amended, 7 U.S.C. § 12a(7)). 23 § 12(c) of the 1968 amendments, 82 Stat. 29 (adding §§ 5a(8), (9) of the CEA, codified as amended, 7 U.S.C. §§ 7a(8), (9)). Today, § 5a(8) of the CEA, 7 U.S.C. § 7a(8). requires each contract market to "[e]nforce all bylaws, rules, regulations, and resolutions, made or issued by it or by the governing board thereof or by any committee, which relate to terms and conditions in contracts of sale to be executed on or subject to the rules of such contract market or relate to other trading requirements, and which have been approved by the Commission pursuant to paragraph (12) of this section; and revoke and not enforce any such bylaw, rule, regulation, or resolution, made, issued, or proposed by it or by the governing board thereof or any committee, which has been disapproved by the Commission." 24 § 15 of the 1968 amendments, 82 Stat. 30 (amending § 6(a) of the CEA, codified as subsequently amended, 7 U.S.C. § 8(a) (1976 ed., Supp.IV)). 25 § 18 of the 1968 amendments, 82 Stat. 31-32 (amending § 6b of the CEA, codified as subsequently amended, 7 U.S.C. § 13a (1976 ed., Supp.IV)). 26 § 25 of the 1968 amendments, 82 Stat. 33-34 (amending § 9 of the CEA, codified as subsequently amended, 7 U.S.C. § 13 (1976 ed., Supp.IV)). 27 § 17 of the 1968 amendments, 82 Stat. 31 (adding § 6(c) of the CEA, codified as amended, 7 U.S.C. § 13b). 28 Title I, 88 Stat. 1389, Title II, 88 Stat. 1395, and Title IV, 88 Stat. 1412, each amended separate sections of the CEA; Title III, 88 Stat. 1406, added an entirely new section authorizing the creation of national futures associations. 29 Section 201(b) of the 1974 amendments, 88 Stat. 1395 (amending § 2(a) of the CEA, codified as subsequently amended, 7 U.S.C. § 2 (1976 ed., Supp.IV)), extended the coverage of the statute to "all . . . goods and articles . . . and all services, rights, and interests in which contracts for future delivery are presently or in the future dealt in." 30 § 212 of the 1974 amendments, 88 Stat. 1403-1404 (amending §§ 6(b), 6b, 6(c), and 9 of the CEA, codified as subsequently amended, 7 U.S.C. §§ 9, 13, 13a, 13b (1976 ed. and Supp.IV)). 31 § 211 of the 1974 amendments, 88 Stat. 1402 (adding § 6c of the CEA, 7 U.S.C. § 13a-1). 32 § 213 of the 1974 amendments, 88 Stat. 1404 (replacing § 8a(7) of the CEA, 7 U.S.C. § 12a(7)). 33 § 215 of the 1974 amendments, 88 Stat. 1404-1405 (adding § 8(a)(9) of the CEA, 7 U.S.C. § 12a(9)). 34 Congress extended the registration requirement and the corresponding antifraud and criminal penalty provisions to commodity trading advisers and commodity pool operators. §§ 205 and 409 of the 1974 amendments, 88 Stat. 1398-1400, 1414 (adding §§ 4n, 4o, and amending § 9(c) of the CEA, codified as subsequently amended, 7 U.S.C. §§ 6n, 6o, 13(c) (1976 ed. and Supp.IV)). 35 § 209 of the 1974 amendments, 88 Stat. 1401 (adding § 5a(11) of the CEA, codified as subsequently amended, 7 U.S.C. § 7a(11) (1976 ed., Supp.IV)). 36 § 106 of the 1974 amendments, 88 Stat. 1393-1395 (adding § 14 of the CEA, codified as subsequently amended, 7 U.S.C. § 18 (1976 ed. and Supp.IV)). 37 § 19 of the 1978 amendments, 92 Stat. 875 (amending § 9 of the CEA, 7 U.S.C. § 13 (1976 ed., Supp.IV)). 38 "Whenever it shall appear to the attorney general of any State, the administrator of the securities laws of any State, or such other official as a State may designate, that the interests of the residents of that State have been, are being, or may be threatened or adversely affected because any person (other than a contract market, clearinghouse, or floor broker) has engaged in, is engaging or is about to engage in, any act or practice constituting a violation of any provision of this Act or any rule, regulation, or order of the Commission thereunder, the State may bring a suit in equity or an action at law on behalf of its residents to enjoin such act or practice, to enforce compliance with this Act, or any rule, regulation, or order of the Commission thereunder, to obtain damages on behalf of their residents, or to obtain such further and other relief as the court may deem appropriate." § 15 of the 1978 amendments, 92 Stat. 872 (adding § 6d(1) of the CEA, 7 U.S.C. § 13a-2(1) (1976 ed., Supp.IV)). 39 638 F.2d, at 285 (quoting National Super Spuds, Inc. v. New York Mercantile Exchange, 470 F.Supp. 1256, 1258 (SDNY 1979)). "The default was virtually unprecedented and, in the words of CFTC officials and members of the industry, shocked the commodity markets and the participants more than any other single event in recent years." H.R.Rep. No. 95-1181, p. 99 (1978), U.S.Code Cong. & Admin.News 1978, p. 2087. 40 622 F.2d, at 221-224. The court held that a discretionary commodity account was not a security subject to the federal securities laws, relying primarily on Milnarik v. M-S Commodities, Inc., 457 F.2d 274 (CA7), cert. denied, 409 U.S. 887, 93 S.Ct. 113, 34 L.Ed.2d 144 (1972). 41 The Court of Appeals also decided that the plaintiffs need not invoke the jurisdiction of the Commission prior to maintaining their CEA action. 622 F.2d, at 235-236. Petitioner does not challenge that decision. 42 Although the complaint alleged a violation of § 6 of the CEA, the parties agree that the section under which recovery is sought is § 4b, 7 U.S.C. § 6b (quoted in n. 18, supra ). 43 As a result of the first report issued in August 1975, "the price of the Contract rose from $9.75 per cwt ($.0975 per pound) to a record price of $19.15 per cwt ($.1915 per pound) by October 3, 1975." Complaint, App. in Nos. 80-757, 80-895, 80-936, p. 48. 44 See 17 CFR § 150.10(a)(1)(iii) (1981). 45 "Because the long conspirators had successfully tied up all the freight cars of the Bangor & Aroostook, Incomco was unable to deliver its warehoused potatoes to persons seeking delivery to fulfill short contracts. As the warm weather set in, the 1,500,000 pounds of potatoes became rotten, and Incomco's total investment was lost." 638 F.2d, at 291. 46 One respondent, Incomco, had taken delivery on March 1976 Maine potato futures contracts and planned to sell these potatoes to short traders in the May contract. 47 Exchange Rule 44.02, governing the final day of trading, provides in part: "(a) On the final day of trading in the delivery month, it shall be the responsibility of each clearinghouse member who is not in a position to fulfill his contractual obligation on any maturing contract by prescribed notice and tender, to have a liquidating order entered on the Exchange floor not later than five minutes before the time established as the official close for such delivery month. All such orders shall be market orders to be executed prior to the expiration of trading." 48 The Commission had previously commenced its own investigation, which led to administrative proceedings against various parties involved in the default on the May Maine potatoes futures contract. See Brief for Petitioners in No. 80-936, p. 3. Substantial penalties were imposed. See 638 F.2d, at 330, n. 3 (Mansfield, J., dissenting). 49 Although the complaints are not so specific, apparently respondents sought to recover damages from all defendants under §§ 4b and 9(b) of the CEA, 7 U.S.C. §§ 6b and 13(b) (1976 ed. and Supp.IV), from the conspirator traders and their brokers under § 4a, 7 U.S.C. § 6a, and from the exchange under §§ 5(d) and 5a(8), 7 U.S.C. §§ 7(d) and 7a(8). Sections 5(d), 9(b), 4b, 4a, and 5a(8) are quoted in nn. 16, 18, 19, and 23, supra. 50 "There can be no question that plaintiffs, investors in the commodities market and a dealer in potatoes, are within the class 'for whose especial benefit the statute was enacted.' As Senator Dole stated, the primary purposes of the 1974 amendments to the Act were '[to protect] against manipulation of markets and to protect any individual who desires to participate in futures market trading.' Additionally, the Act itself states that price manipulation and unreasonable fluctuations in price 'are detrimental to . . . persons handling commodit[ies].' " 470 F.Supp., at 1259-1260 (footnotes omitted). 51 "In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff 'one of the class for whose especial benefit the statute was enacted,' Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874 (1916) (emphasis supplied)—that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? See, e.g., National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 458, 460, 94 S.Ct. 690, 693, 694, 38 L.Ed.2d 646 (1974) (Amtrak ). Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? See, e.g., Amtrak, supra; Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 423, 95 S.Ct. 1733, 1740, 44 L.Ed.2d 263 (1975); Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964). And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? See Wheeldin v. Wheeler, 373 U.S. 647, 652, 83 S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963); cf. J. I. Case Co. v. Borak, 377 U.S. 426, 434, 84 S.Ct. 1555, 1560, 12 L.Ed.2d 423 (1964); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 394-395, 91 S.Ct. 1999, 2003-04, 29 L.Ed.2d 619 (1971); id., at 400, 91 S.Ct. at 2006 (Harlan, J., concurring in judgment)." 52 In that case the Court stated: "A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied, according to a doctrine of the common law expressed in 1 Com.Dig., tit. Action upon Statute (F), in these words: 'So, in every case, where a statute enacts, or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law.' (Per Holt, C. J., Anon., 6 Mod. 26, 27.) This is but an application of the maxim, Ubi jus ibi remedium. See 3 Black.Com. 51, 123; Couch v. Steel, 3 E1. & B1. 402, 411; 23 L.J.Q.B. 121, 125." 241 U.S., at 39-40, 36 S.Ct., at 484. 53 T. Cooley, Law of Torts 790 (2d ed. 1888) described the common-law remedy for breach of a statutory duty in this way: "[W]hen the duty imposed by statute is manifestly intended for the protection and benefit of individuals, the common law, when an individual is injured by a breach of the duty, will supply a remedy, if the statute gives none." A few years earlier an opinion by Judge Cooley was quoted with approval by this Court in support of its holding that a railroad's breach of a statutory duty to fence its right-of-way gave an injured party an implied damages remedy. See Hayes v. Michigan Central R. Co., 111 U.S. 228, 240, 4 S.Ct. 369, 374, 28 L.Ed. 410 (1884). 54 See, e.g., Marbury v. Madison, 1 Cranch 137, 163, 2 L.Ed. 60 (1803) (" '[I]t is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, whenever that right is invaded' ") (quoting 3 W. Blackstone, Commentaries *23); Kendall v. United States, 12 Pet. 524, 624, 9 L.Ed. 1181 (1838) ("It cannot be denied but that congress had the power to command that act to be done; and the power to enforce the performance of the act must rest somewhere, or it will present a case which has often been said to involve a monstrous absurdity in a well organized government, that there should be no remedy, although a clear and undeniable right should be shown to exist"); Pollard v. Bailey, 20 Wall. 520, 527, 22 L.Ed. 376 (1874) ("A general liability created by statute without a remedy may be enforced by an appropriate common-law action"); Hayes v. Michigan Central R. Co., supra, at 240, 4 S.Ct., at 374 ("[E]ach person specially injured by the breach of the obligation is entitled to his individual compensation, and to an action for its recovery"); De Lima v. Bidwell, 182 U.S. 1, 176-177, 21 S.Ct. 743, 745, 45 L.Ed. 1041 (1901) ("If there be an admitted wrong, the courts will look far to supply an adequate remedy"). 55 See, e.g., T.I.M.E. Inc. v. United States, 359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952 (1959); National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974). 56 See, e.g., J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964); Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968); Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969); Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969); Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6, 92 S.Ct. 165, 30 L.Ed.2d 128 (1971). 57 See California v. Sierra Club, 451 U.S. 287, 292-293, 101 S.Ct. 1775, 1778-79, 68 L.Ed.2d 101 (1981). 58 See n. 51, supra. 59 Statistics compiled in J. Bibby, T. Mann, & N. Ornstein, Vital Statistics on Congress, 1980, p. 91 (1980), indicate that, compared to 30 years ago, Congress today passes fewer, but much longer, public bills. 60 "There is no allegation that the antitrust laws expressly establish a right of action for contribution. Nothing in these statutes refers to contribution, and if such a right exists it must be by implication. Our focus, as it is in any case involving the implication of a right of action, is on the intent of Congress. E.g., California v. Sierra Club, [451 U.S.] 287, 101 S.Ct. p. 1775; Universities Research Assn. v. Coutu, 450 U.S. 754, 101 S.Ct. 1451, 67 L.Ed.2d 662 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). Congressional intent may be discerned by looking to the legislative history and other factors: e.g., the identity of the class for whose benefit the statute was enacted, the overall legislative scheme, and the traditional role of the states in providing relief. See California v. Sierra Club, supra; Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975)." 61 "The legislative history thus leaves little doubt that Congress was persuaded that federal employees who were treated discriminatorily had no effective judicial remedy. And the case law suggests that that conclusion was entirely reasonable. Whether that understanding of Congress was in some ultimate sense incorrect is not what is important in determining the legislative intent in amending the 1964 Civil Rights Act to cover federal employees. For the relevant inquiry is not whether Congress correctly perceived the then state of the law, but rather what its perception of the state of the law was." Brown v. GSA, 425 U.S. 820, 828, 96 S.Ct. 1961, 1965, 48 L.Ed.2d 402 (1976) (footnote omitted). 62 There is no dispute concerning the state of the law in 1974, even by those who have argued that a private cause of action under the CEA did not survive the 1974 amendments. See, e.g., Rivers v. Rosenthal & Co., 634 F.2d, at 779; Davis, The Commodity Exchange Act: Statutory Silence is Not Authorization for Judicial Legislation of an Implied Private Right of Action, 46 Mo.L.Rev. 316, 321 (1981). 63 The recognition of a private cause of action under the CEA was also fully consistent with the implication doctrine followed by this Court prior to Cort v. Ash. See supra, at 374-377. 64 "In one, the Phillips suit, it was alleged that the Exchange had forced sales of futures contracts in March 1970 fresh eggs at artificially depressed market prices and had thereby monopolized and restrained commerce in violation of §§ 1 and 2 of the Sherman Act, and had violated § 9(b) of the Commodity Exchange Act (CEA) by manipulating prices of a commodity for future delivery on a contract market. The Exchange was also accused of violating § 5a of the CEA for failure to enforce one of its own rules. In the second suit, the Deaktor case, the Exchange was charged with violating the CEA and its own rules as a designated contract market because it had failed to exercise due care to halt the manipulative conduct of certain of its members who allegedly had cornered the July 1970 market in frozen pork bellies futures contracts." 414 U.S., at 113-114, 94 S.Ct., at 466 (statutory citations omitted). 65 The Court of Appeals had expressly confirmed the availability of a private remedy, see Deaktor v. L. D. Schreiber & Co., 479 F.2d 529, 534 (CA7 1973), but the exchange did not question that ruling before this Court. Rather, the exchange's complaint concerned the Court of Appeals' refusal to invoke the doctrine of primary jurisdiction: "The Chicago Mercantile Exchange has thus been put in an intolerable position. It must diligently seek to prevent, deter, and punish violations of its rules; but enforcement of its rules now exposes it to unrestricted attacks in federal courts by disgruntled traders. This situation will disrupt, if not immobilize, the self-regulatory machinery established by the Commodity Exchange Act. The doctrine of primary jurisdiction expressed in Ricci was designed to alleviate this dilemma." Pet. for Cert. in Chicago Mercantile Exchange v. Deaktor, O.T. 1973, No. 73-241, pp. 11-12. 66 "Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change, see Albemarle Paper Co. v. Moody, 422 U.S. 405, 414, n. 8, 95 S.Ct. 2362, 2370, n. 8, 45 L.Ed.2d 280 (1975); NLRB v. Gullett Gin Co., 340 U.S. 361, 366, 71 S.Ct. 337, 340, 95 L.Ed. 337 (1951); National Lead Co. v. United States, 252 U.S. 140, 147, 40 S.Ct. 237, 239, 64 L.Ed. 496 (1920); 2A C. Sands, Sutherland on Statutory Construction § 49.09 and cases cited (4th ed. 1973). So too, where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute." Lorillard v. Pons, 434 U.S. 575, 580-581, 98 S.Ct. 866, 869-871, 55 L.Ed.2d 40 (1978). 67 See generally supra, at 360-367. 68 See 7 U.S.C. § 7. 69 See S.Rep. No. 947, 90th Cong., 2d Sess., 2-3 (1968), U.S.Code Cong. & Admin.News 1968, p. 1673. 70 See, e.g., Hearings on H.R. 11955 before the House Committee on Agriculture, 93d Cong., 2d Sess., 62 (1974); Hearings on Review of Commodity Exchange Act and Discussion of Possible Changes before the House Committee on Agriculture, 93d Cong., 1st Sess., 121 (1973). 71 In introducing the House bill, Representative Poage, the Chairman of the House Agriculture Committee, explained this development at some length. See 119 Cong.Rec. 41333 (1973). Representative Thone, a member of that Committee, later reiterated the problem. See 120 Cong.Rec. 10748 (1974) ("Some observers believe that the provision of the 1968 amendments requiring exchanges to enforce their own rules, thereby implicitly giving private parties the right to sue for nonenforcement, has had a perverse effect. To avoid risk of litigation, exchange authorities have been encouraged to reduce rather than strengthen rules designed to insure fair trading"). 72 Indeed, Congress was urged to grant the exchanges immunity from private causes of action. See Hearings on Review of Commodity Exchange Act and Discussion of Possible Changes, supra, at 121. The president of one exchange even proposed the addition of specific language to the statute that would have granted such immunity. See Hearings on H.R. 11955, supra, at 123; Hearings on S. 2485, S. 2578, S. 2837, and H.R. 13113 before the Senate Committee on Agriculture and Forestry, 93d Cong., 2d Sess., 317 (1974). 73 See § 8a(7) of the CEA, 7 U.S.C. § 12a(7). 74 88 Stat. 1389 (emphasis added). 75 The reparations procedure is available against only futures commission merchants and their associates, floor brokers, commodity trading advisers, and commodity pool operators. In addition to exchanges, this list excludes traders who violate the CEA. 76 See, e.g., Hearings on H.R. 11955, supra, at 249 ("We point out that section 209 of the bill . . . requires contract markets to establish arbitration procedures for the settlement of customers' claims and grievances against members and employees of a contract market. In addition to these arbitration procedures, complainants of course have access to the courts. If the Commission is also given jurisdiction to pass upon civil disputes, there would then be a third forum for the same issues"). 77 See id., at 321. 78 See Hearings on S. 2485, S. 2578, S. 2837, and H.R. 13113, supra, at 415. 79 120 Cong.Rec. 10737 (1974). 80 Id., at 30459. 81 The provision in the bill passed by the House provided as follows: "Provided, that the Commission shall have exclusive jurisdiction of transactions dealing in, resulting in, or relating to contracts of sale of a commodity for future delivery . . .: And provided further, That nothing herein contained shall supersede or limit the jurisdiction at any time conferred on the Securities [and] Exchange Commission or other regulatory authorities under the laws of the United States. . . ." H.R. 13113, 93d Cong., 2d Sess., 201 (1974). 82 See House Report, at 3. 83 Hearings on S. 2485, S. 2578, S. 2837, and H.R. 13113, supra, at 205. For other expressions of concern, see id., at 259-260 (Chairman Rodino of the House Committee on the Judiciary); id., at 664 (Chairman Talmadge). 84 See 7 U.S.C. § 2. 85 Chairmen Talmadge and Poage reported that "the conferees wished to make clear that nothing in the act would supersede or limit the jurisdiction presently conferred on courts of the United States or any State. This act is remedial legislation designed to correct certain abuses which Congress found to exist in areas that will now come within the jurisdiction of the CFTC." 120 Cong.Rec. 34737, 34997 (1974). 86 In his opinion for the Second Circuit panel majority, Judge Friendly extensively analyzed the evidence of legislative intent with respect to the pre-existing private remedy. See 638 F.2d, at 307-321. We need not restate that analysis in the same detail. 87 Section 4a instructs the Commission to fix trading and position limits to curb excessive speculation. 7 U.S.C. § 6a. Section 5(d) requires as a condition for designation as a contract market that an exchange prevent price manipulation by dealers, 7 U.S.C. § 7(d), and § 5a(8) imposes a duty upon contract markets to enforce their rules, 7 U.S.C. § 7a(8). Section 9(b) fixes criminal penalties for price manipulation and other violations of the CEA. 7 U.S.C. § 13(b) (1976 ed., Supp.IV). 88 The language of § 4b is similar to that of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and this Court has recognized an implied cause of action under the Securities and Exchange Commission's Rule 10b-5 on behalf of all securities traders. Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U.S., at 13, n. 9, 92 S.Ct., at 169, n. 9; Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). We recognized in Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), that the implication of a cause of action under Rule 10b-5 could be "explained historically"; "the Court explicitly acquiesced in the 25-year-old acceptance by the lower federal courts of a Rule 10b-5 cause of action." Id., at 692, n. 13, 99 S.Ct., at 1955, n. 13. In terms of the number of years and the number of decisions in which an implied cause of action was recognized, the CEA action does not compare favorably with the Rule 10b-5 action. On the other hand, Congress comprehensively reexamined the CEA in 1974 and did not amend the sections under which the cause of action had been implied; no comparable legislative approval or acquiescence exists for the Rule 10b-5 remedy. 89 See, e.g., § 3 of the CEA, 42 Stat. 999, codified as amended, 7 U.S.C. § 5. 90 See, e.g., n. 11, supra. 91 "The Court consistently has found that Congress intended to create a cause of action 'where the language of the statute explicitly confer[s] a right directly on a class of persons that include[s] the plaintiff in the case.' Cannon v. University of Chicago, 441 U.S. 677, 690, n. 13 [99 S.Ct. 1946, 1954, n. 13, 60 L.Ed.2d 560] (1979). Conversely, it has noted that there 'would be far less reason to infer a private remedy in favor of individual persons' where Congress, rather than drafting the legislation 'with an unmistakable focus on the benefited class,' instead has framed the statute simply as a general prohibition or a command to a federal agency. Id., at 690-692 [99 S.Ct., at 1954-55.]" Universities Research Assn., Inc. v. Coutu, 450 U.S. 754, 771-772, 101 S.Ct. 1451, 1462-1463, 67 L.Ed.2d 662 (1981). 92 "The statutes originally enacted in 1933 and 1934 have been amended so often with full congressional awareness of the judicial interpretation of Rule 10b-5 as implicitly creating a private remedy that we must now assume that Congress intended to create rights for the specific beneficiaries of the legislation as well as duties to be policed by the SEC. This case therefore does not present the same kind of issue discussed in Cort v. Ash, 422 U.S. 66 [95 S.Ct. 2080, 45 L.Ed.2d 26] [1975], namely, whether the statute created an implied private remedy. Rather, the question presented here is who may invoke that remedy." Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 55, n. 4, 97 S.Ct. 926, 930, n. 4, 51 L.Ed.2d 124 (1977) (STEVENS, J., dissenting) (emphasis in original). 93 The seminal decision was Goodman v. H. Hentz & Co., 265 F.Supp. 440 (ND Ill. 1967), in which the implication of a private remedy on behalf of commodity futures traders against their broker was based on Restatement of Torts § 286 (1983). "Violation of a legislative enactment by doing a prohibited act makes the actor liable for an invasion of the interest of another if: (1) the intent of the enactment is exclusively or in part to protect the interest of the other as an individual; and (2) the interest invaded is one which the enactment is intended to protect. Restatement, Torts, Section 286. Violation of the standard of conduct set out in Section 6b of the Commodity Exchange Act is a tort for which plaintiffs, as members of the class Congress sought to protect from the type of harm they allege here, have a federal civil remedy even in the absence of specific mention of a civil remedy in the Commodity Exchange Act. The Restatement rationale was the basis for the presently well accepted rule that a civil remedy cognizable in the federal courts will be implied for a defrauded investor under Section 78j of the Securities Act of 1934 and Securities and Exchange Commission regulation 10b-5 thereunder. Kardon v. National Gypsum Co., D.C., 69 F.Supp. 512 (1946)." 265 F.Supp., at 447. 94 Deaktor v. L. D. Schreiber & Co., 479 F.2d, at 534; Booth v. Peavey Co. Commodity Services, 430 F.2d 132, 133 (CA8 1970); Seligson v. New York Produce Exchange, 378 F.Supp. 1076, 1083-1092 (SDNY 1974), aff'd, Miller v. New York Produce Exchange, 550 F.2d 762 (CA2), cert. denied, 434 U.S. 823, 98 S.Ct. 68, 54 L.Ed.2d 80 (1977); sub nom. Arnold v. Bache & Co., 377 F.Supp. 61, 65-66 (MD Pa.1973); Gould v. Barnes Brokerage Co., 345 F.Supp. 294 (ND Tex. 1972); Johnson v. Arthur Espey, Shearson, Hammill & Co., 341 F.Supp. 764, 766 (SDNY 1972); McCurnin v. Kohlmeyer & Co., 340 F.Supp. 1338, 1342-1343 (ED La.1972); United Egg Producers v. Bauer International Corp., 311 F.Supp. 1375, 1383-1384 (SDNY 1970); Anderson v. Francis I. duPont & Co., 291 F.Supp. 705, 710 (Minn.1968); Hecht v. Harris, Upham & Co., 283 F.Supp. 417, 437 (ND Cal. 1968), modified, 430 F.2d 1202 (CA9 1970). 95 The facts alleged in the Deaktor case are quite similar to those alleged in the Second Circuit case: "Darryl B. Deaktor, plaintiff in Nos. 71-1890 and 71-1893, brought a class action against the Chicago Mercantile Exchange and various members of the Exchange alleging that the defendant members manipulated and cornered the July, 1970 frozen pork bellies futures contracts market, forcing up the price of those contracts and injuring traders, such as the plaintiff, who sold short and had not liquidated their positions prior to the defendants' manipulation and thus were required to cover their positions by the purchase of contracts at inflated prices. This conduct was alleged to be in violation of 7 U.S.C. § 1 et seq. of the Commodity Exchange Act. The Exchange was sued on the ground of failing to exercise reasonable care in compliance with 7 U.S.C. § 7a(8), and thus failing to be aware of and to promptly halt the unlawful activities of the defendants." 479 F.2d, at 530. See also Seligson v. New York Produce Exchange, supra, at 1083-1092. 96 See supra, at 382-384. 97 See n. 51, supra. 98 Cort v. Ash, 422 U.S., at 78, 95 S.Ct., at 2087. 99 That duty has been the centerpiece of federal regulation in this area since 1921. See supra, at 361-362, 382-384. 100 "It is just as much 'judicial legislation' for a court to withdraw a remedy which Congress expected to be continued as to improvise one that Congress never had in mind." 638 F.2d, at 313. 101 Indeed, in the Deaktor case, members of the exchange alleged to have manipulated the futures contract price and cornered the market were sued by short traders. See n. 95, supra. 102 Notably, the reparations provision enacted in 1974, 7 U.S.C. § 18, includes no express limitation on the types of aggrieved persons that can seek reparations from persons registered under certain provisions of the statute. Section 18(a) provides that "[a]ny person complaining of any violation of any provision of this chapter or any rule, regulation, or order thereunder by any person who is registered or required to be registered under section 6d, 6e, 6j or 6m of this title may, at any time within two years after the cause of action accrues," file a complaint with the Commission. 103 See, e.g., Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 97 S.Ct. 1292, 51 L.Ed.2d 480 (1977); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975); Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972). 1 As the Court correctly observes, ante, at 377, reliance on congressional intent as dispositive of implication questions was at least implicit in the four-pronged inquiry mandated by Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). The Cort test explicitly called for inquiries into whether plaintiffs were seen by Congress as especial beneficiaries of a statutory scheme, whether an implied cause of action would be consistent with legislative purpose, and whether the asserted cause of action traditionally was relegated to state law. See id., at 78, 95 S.Ct., at 2087. But these factors all are important primarily as indices of congressional intent. As we recently explained in Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S.Ct. 2061, 2066, 68 L.Ed.2d 500 (1981), "Congressional intent may be discerned by looking to . . ., e.g., the identity of the class for whose benefit the statute was enacted, the overall legislative scheme, and the traditional role of the states in providing relief." 2 The five sections are § 4a, 7 U.S.C. § 6a; § 4b, 7 U.S.C. § 6b; § 5a(8), 7 U.S.C. § 7a(8); § 5(d), 7 U.S.C. § 7(d); and § 9(b), 7 U.S.C. § 13(b). Though subsequently amended, §§ 5(d) and 9(b) were both adopted as part of the Grain Futures Act of 1922. See 42 Stat. 1000, 1003. Section 5(d) authorizes the Commodity Futures Trading Commission (CFTC) to designate as a "contract market" (and thus permit trading upon) a commodities exchange only when the exchange's governing board "provides for the prevention of manipulation of prices and the cornering of any commodity by the dealers or operators" upon the exchange. Its terms suggest no intent to confer a right of action on any class of aggrieved persons. Section 9(b)—as are §§ 4a and 4b—is a criminal provision. It establishes that "[i]t shall be a felony" for "any person" to manipulate commodity prices, to corner commodities, to deliver false crop or market information, or to omit or misstate facts to the CFTC. Before today the Court had established that private rights of action generally would not be inferred from criminal prohibitions. See California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 114 (1981); Cannon v. University of Chicago, 441 U.S. 677, 690-693, n. 13, 99 S.Ct. 1946, 1954-1955, n. 13, 60 L.Ed.2d 560 (1979). Sections 4a and 4b were adopted as part of the Commodity Exchange Act of 1936. See 49 Stat. 1492, 1493. Section 4a provides that it is illegal for any person to buy, sell, or hold positions in excess of limitations established by the CFTC. Section 4b declares it unlawful for designated persons who make commodity futures contracts for other persons to cheat, defraud, deceive, or make false statements to such other persons. Sections 4a and 4b are similar to § 206 of the Investment Advisors Act of 1940. See 15 U.S.C. § 80b-6. We have held explicitly that the language of § 206 does not create an implied damages action. Transamerica Mortgage Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 16, n. 6, 24, 100 S.Ct. 242, 245, n. 6, 249, 62 L.Ed.2d 146 (1979). Section 5a(8), 7 U.S.C. § 7a(8), is traceable to the 1968 amendments. It directs that each "contract market" shall enforce its own approved rules relating to contract and trading requirements. Section 5a(8) resembles the language of 15 U.S.C. § 78q(a) (1970 ed.), that we found to create no implied private damages action under the Securities Exchange Act of 1934. Touche Ross & Co. v. Redington, 442 U.S. 560, 562, n. 2, 579, 99 S.Ct. 2479, 2482, n. 2, 2490, 61 L.Ed.2d 82 (1979). 3 The structural history of the CEA and its antecedents is ably summarized by the Court and requires no further recounting here. See ante, at 360-367. 4 Congress had included jurisdictional provisions under several securities laws preceding enactment of the 1936 amendments to the CEA, thus evidencing that it knew quite well how to authorize private suits for civil damages when it wished to do so. TAMA, supra, at 20-21, 100 S.Ct., at 247. 5 The Court correctly observes that the effect of Cort v. Ash was to "modify [this Court's] approach to the question whether a federal statute includes a private right of action." Ante, at 377 (emphasis added). As exemplifying a previous approach the Court quotes Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874 (1916): "A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied. . . ." The Court does not appear to argue, however, that Rigsby mandated the Goodman decision. Nor does Rigsby somehow validate Goodman as a correct statement of the law as it was in 1967. As is clear from a reading of the opinion, Rigsby stated not so much a rule of substantive law as a maxim of statutory construction. Rigsby did not question that the creation of rights of action was a congressional function. On the contrary, in Rigsby the Court devoted most of its opinion, not to the question whether a remedy could be "implied" under the statute, but to the question whether it was within the constitutional power of Congress to impose tort liability of the kind asserted. See 241 U.S., at 40-43, 36 S.Ct., at 484-485 (asserting that plaintiff will be entitled to recover "unless it be beyond the power of Congress under the commerce clause of the Constitution to create such a liability") (emphasis added). Moreover, although the Rigsby approach made the denial of a damages action "the exception rather than the rule," ante, at 375, the Court even during the Rigsby period refused to recognize implied remedies where the evidence—even with the aid of the maxim failed to indicate that Congress had intended to create them. See, e.g., TIME, Inc. v. United States, 359 U.S. 464, 474, 79 S.Ct. 904, 910, 3 L.Ed.2d 952 (1959) ("The question is, of course, one of statutory intent"); National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 457-458, 94 S.Ct. 690, 692-693, 38 L.Ed.2d 646 (1974) (Amtrak ) ("It goes without saying . . . that the inference of such a private cause of action not otherwise authorized by the statute must be consistent with the evident legislative intent . . ."). 6 One of these cases, Deaktor v. L. D. Schreiber & Co., 479 F.2d 529, 534 (CA7), rev'd on other grounds sub nom. Chicago Mercantile Exchange v. Deaktor, 414 U.S. 113, 94 S.Ct. 466, 38 L.Ed.2d 344 (1973), did come before this Court. But the petition for certiorari included no "implication" question, and our per curiam opinion decided the case on primary jurisdiction grounds. Reversing the decision of the Court of Appeals, which had upheld the jurisdiction of the District Court to entertain a private suit for damages under the CEA, we held that "the Deaktor plaintiffs, who . . . alleged violations of the CEA and the rules of the [Chicago Mercantile] Exchange, should be routed in the first instance to the [Commodity Exchange Commission] whose administrative functions appear to encompass adjudication of the kind of substantive claims made against the Exchange in this case." Id., at 115, 94 S.Ct., at 467. The Court today notes that Deaktor "did not question the availability of a private remedy under the CEA." Ante, at 381. But neither does Deaktor exert any precedential force on an issue that the parties did not present and the Court did not decide. In any event, our disposition of the Deaktor case—referring the matters complained of to the Commodity Exchange Commission—at least is consistent with a view that plaintiffs enjoy no private rights of action in the courts, but that they are entitled to seek administrative relief through the procedures made available under the CEA. 7 See Hecht v. Harris, Upham & Co., 283 F.Supp. 417, 437 (ND Cal. 1968), modified on other grounds, 430 F.2d 1202 (CA9 1970); Anderson v. Francis I. duPont & Co., 291 F.Supp. 705, 710 (Minn. 1968); Booth v. Peavey Co. Commodity Services, 430 F.2d 132, 133 (CA8 1970) (alternative holding); McCurnin v. Kohlmeyer & Co., 340 F.Supp. 1338, 1343 (ED La. 1972); Johnson v. Arthur Espey, Shearson, Hammill & Co., 341 F.Supp. 764, 766 (SDNY 1972); Gould v. Barnes Brokerage Co., 345 F.Supp. 294 (ND Tex. 1972) (by implication); Arnold v. Bache & Co., 377 F.Supp. 61, 65-66 (MD Pa. 1973). 8 See United Egg Producers v. Bauer International Corp., 311 F.Supp. 1375, 1384 (SDNY 1970); Seligson v. New York Produce Exchange, 378 F.Supp. 1076, 1084 (SDNY 1974), aff'd 550 F.2d 762 (CA2) (no explicit discussion of propriety of implying cause of action under the CEA), cert. denied, sub nom. Miller v. New York Produce Exchange, 434 U.S. 823, 98 S.Ct. 68, 54 L.Ed.2d 80 (1977); Deaktor v. L. D. Schreiber & Co., supra, at 534. 9 "The fundamental purpose of the Commodity Exchange Act 'is to ensure fair practice and honest dealing on the commodity exchanges and to provide a measure of control over those forms of speculative activity which too often demoralize the markets to the injury of producers and consumers and the exchanges themselves.' " Campbell, Trading in Futures under the Commodity Exchange Act, 26 Geo.Wash.L.Rev. 215, 223 (1958), quoting H.R.Rep. No. 421, 74th Cong., 1st Sess., 1 (1935). 10 If Congress must be presumed to have known of the lower court decisions in the Goodman line, it would seem Congress also should be presumed to have known of this Court's 1974 decision in Amtrak, supra. Amtrak properly directed that the implication of rights of action must adhere to congressional intent. See 414 U.S., at 457-458, 94 S.Ct., at 692-693. More importantly, Amtrak also would have alerted Congress that its provision of a comprehensive scheme of administrative remedies—and the 1974 amendments to the CEA admittedly provided such a scheme, see ante, at 384-385—would give rise to an inference of intent to preclude alternative modes of relief. See 414 U.S., at 458, 94 S.Ct., at 693 ("[W]hen legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies"). The Court does not explain the relationship of Amtrak to Congress' presumptive knowledge of "the 'contemporary legal context' in which [it] legislated in 1974." Ante, at 381 11 The Court opinion, see ante, at 381-382, and n. 66, cites cases in which we previously have held that "Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change. . . ." Lorillard v. Pons, 434 U.S. 575, 580-581, 98 S.Ct. 866, 869-870, 55 L.Ed.2d 40 (1978). Here, however, Congress did not re-enact the provisions in issue in 1974; the relevant 1974 amendments altered existing language, but without actively readopting the terms that were left unchanged. It also is significant that the statute involved in Lorillard expressly authorized private civil actions. Id., at 579, n. 6, 98 S.Ct., at 869, n. 6. The Court cites no case in which a presumption of congressional awareness was based on erroneous lower court decisions. 12 The added reimbursement procedures are of two types. First, the 1974 Congress added § 5a(11) to the Act. See 88 Stat. 1401. This provision requires commodity exchanges to "provide a fair and equitable procedure through arbitration or otherwise for the settlement of customers' claims and grievances against any member or employee [of the exchange]" (emphasis added). The procedure applies only to claims involving less than $15,000. This process evidently is designed to encourage the speedy and voluntary resolution of smaller customer disputes at the exchange level. Second, the 1974 amendments included a new § 14 that expressly authorized damages actions. See 88 Stat. 1393-1394. This adjudicatory procedure apparently is designed to resolve larger disputes or smaller § 5a(11) disputes that are not settled. The actions are brought before the Commission rather than before an exchange. There is no limit on the amount of damages that may be awarded. The Commission's judgments are enforceable by actions in federal district court. 7 U.S.C. § 18. 13 Instead of attempting to explain this overlap between the express and the implied CEA remedies, the Court points to the limitations Congress placed on its express remedies as compared to an implied Goodman action. See ante, at 384-385, and n. 75. The Court suggests that Congress' scheme is wanting as a tool for compensation and deterrence. The opposite inference would be more reasonable. One normally would assume that Congress took care to prescribe precisely those remedies compatible with its view of the costs and benefits of different modes of regulation. "When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode." Botany Worsted Mills v. United States, 278 U.S. 282, 289, 49 S.Ct. 129, 131, 73 L.Ed. 379 (1929). See Sea Clammers, 453 U.S. 1, 14-15, 101 S.Ct. 2615, 2623, 69 L.Ed.2d 435 (1981). 14 "The presumption that a remedy was deliberately omitted from a statute is strongest when Congress has enacted a comprehensive legislative scheme including an integrated system of procedures for enforcement. . . . The judiciary may not, in the face of such comprehensive legislative schemes, fashion new remedies that might upset carefully considered legislative programs." Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 97, 101 S.Ct. 1571, 1583, 67 L.Ed.2d 750 (1981). See also Sea Clammers, supra, at 13-15, 101 S.Ct., at 2623; Touche Ross & Co. v. Redington, 442 U.S., at 574, 99 S.Ct., at 2488; Amtrak, 414 U.S., at 458, 94 S.Ct., at 693. In an effort to show that these reparation procedures were designed to supplement implied rights of action, the Court reviews comments made by hearing witnesses that allude to the existence of "court" actions. Ante, at 385-386, and nn. 76-80. These references, however, fairly must be characterized as ambiguous. 15 In attaching substantive significance to the jurisdictional saving provision, the Court relies heavily on an isolated remark by Senator Clark. See ante, at 386. Senator Clark is not identified as a legislative draftsman, floor manager, or committee chairman. Cf. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 204, n. 24, 96 S.Ct. 1375, 1386, n. 24, 47 L.Ed.2d 668 (1976) ("Remarks of this kind made in the course of legislative debate or hearings other than by persons responsible for the preparation or the drafting of a bill are entitled to little weight"). Moreover, the Court advances no evidence that even Senator Clark was thinking of Goodman actions when he expressed his concern to preserve existing state and federal jurisdiction. It is equally plausible that he was thinking primarily of federal antitrust jurisdiction and state-court jurisdiction over contract claims. These were, in fact, precisely the grounds on which three other witnesses, appearing before the same Senate Committee as Senator Clark, criticized the language of an earlier draft of the saving clause. See Hearings on S. 2485, S. 2578, S. 2837 and H.R. 13113 before the Senate Committee on Agriculture and Forestry, 93d Cong., 2d Sess., 259-260 (1974) (Chairman Rodino of the House Committee on the Judiciary); id., at 663-664 (Deputy Assistant Attorney General Clearwaters); id., at 667-668 (Director Halverson of the Bureau of Competition, Federal Trade Commission). 16 The relevant portion of this chart is attached as an Appendix to this opinion. 17 There can be little doubt that failure to adhere to this standard will encourage the discovery of private causes of action of which Congress never dreamed. The escalating recourse to damages suits has placed a severe and growing burden on the lower federal courts. My research—accomplished mostly through a computer search of cases in the federal reporters—indicates that in the past decade there have been at least 243 reported Court of Appeals court opinions and 515 District Court opinions dealing with the existence of implied causes of action under various federal statutes. It is time federal courts discontinued the speculative creation of damages liability where the legislative branch has chosen to remain silent.

89

456 U.S. 410 102 S.Ct. 1856 72 L.Ed.2d 222 Walter ZANT, Warden, Petitioner,v.Alpha Otis O'Daniel STEPHENS. No. 81-89. Argued Feb. 24, 1982. Decided May 3, 1982. PER CURIAM. 1 The respondent was convicted of murder in a Georgia Superior Court. His sentencing jury found the following statutory aggravating circumstances:1 2 "(1) that the offense of murder was committed by a person with a prior record of conviction of a capital felony, Code Ann. § 27-2534.1(b)(1); (2) that the murder was committed by a person who has a substantial history of serious assaultive criminal convictions, Code Ann. § 27-2534.1(b)(1), supra; and, (3) that the offense of murder was committed by a person who had escaped from the lawful custody of a peace officer or a place of lawful confinement, Code Ann. § 27-2534.1(b)(9)." Stephens v. Hopper, 241 Ga. 596, 597-598, 247 S.E.2d 92, 94, cert. denied, 439 U.S. 991, 99 S.Ct. 593, 58 L.Ed.2d 667 (1978). 3 The jury imposed the death penalty. On direct appeal, the Georgia Supreme Court affirmed. Stephens v. State, 237 Ga. 259, 227 S.E.2d 261, cert. denied, 429 U.S. 986, 97 S.Ct. 508, 50 L.Ed.2d 599 (1976). On the authority of Arnold v. State, 236 Ga. 534, 224 S.E.2d 386 (1976), it set aside the second statutory aggravating circumstance found by the jury. It upheld the death sentence, however, on the ground that in Arnold "that was the sole aggravating circumstance found by the jury," whereas in the case under review "the evidence supports the jury's findings of the other statutory aggravating circumstances, and consequently the sentence is not impaired." 237 Ga., at 261-262, 227 S.E.2d, at 263. 4 After exhausting his state postconviction remedies, Stephens v. Hopper, supra, the respondent applied for a writ of habeas corpus in Federal District Court. Relief was denied by that court, but the United States Court of Appeals for the Fifth Circuit "reverse[d] the district court's denial of habeas corpus relief insofar as it le[ft] standing the [respondent's] death sentence, and . . . remanded for further proceedings." 631 F.2d 397, 407 (1980), modified, 648 F.2d 446 (1981). We granted the State's petition for certiorari. 454 U.S. 814, 102 S.Ct. 90, 70 L.Ed.2d 82. 5 In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), we upheld the Georgia death penalty statute because the standards and procedures set forth therein promised to alleviate to a significant degree the concern of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), that the death penalty not be imposed capriciously or in a freakish manner. We recognized that the constitutionality of Georgia death sentences ultimately would depend on the Georgia Supreme Court's construing the statute and reviewing capital sentences consistently with this concern. See 428 U.S., at 198, 201-206, 96 S.Ct., at 2937, 2938-2940 (opinion of Stewart, POWELL, and STEVENS, JJ.); id., at 211-212, 222-224, 96 S.Ct., at 2943, 2947-2949 (WHITE, J., concurring in judgment). Our review of the statute did not lead us to examine all of its nuances. It was only after the state law relating to capital sentencing was clarified in concrete cases that we confronted and addressed more specific constitutional challenges in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977); Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978); Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979); and Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). 6 Today, we are asked to decide whether a reviewing court constitutionally may sustain a death sentence as long as at least one of a plurality of statutory aggravating circumstances found by the jury is valid and supported by the evidence. The Georgia Supreme Court consistently has asserted that authority.2 Its construction of state law is clear: "Where two or more statutory aggravating circumstances are found by the jury, the failure of one circumstance does not so taint the proceedings as to invalidate the other aggravating circumstance found and the sentence of death based thereon." Gates v. State, 244 Ga. 587, 599, 261 S.E.2d 349, 358 (1979), cert. denied, 445 U.S. 938, 100 S.Ct. 1332, 63 L.Ed.2d 772 (1980). 7 Despite the clarity of the state rule we are asked to review, there is considerable uncertainty about the state-law premises of that rule.3 The Georgia Supreme Court has never explained the rationale for its position. It may be that implicit in the rule is a determination that multiple findings of statutory aggravating circumstances are superfluous, or a determination that the reviewing court may assume the role of the jury when the sentencing jury recommended the death penalty under legally erroneous instructions. In this Court, the Georgia Attorney General offered as his understanding the following construction of state law: The jury must first find whether one or more statutory aggravating circumstances have been established beyond a reasonable doubt. The existence of one or more aggravating circumstances is a threshold finding that authorizes the jury to consider imposing the death penalty; it serves as a bridge that takes the jury from the general class of all murders to the narrower class of offenses the state legislature has determined warrant the death penalty. After making the finding that the death penalty is a possible punishment, the jury then makes a separate finding whether the death penalty should be imposed. It bases this finding "not upon the statutory aggravating circumstances but upon all the evidence before the jury in aggravation and mitigation of punishment which ha[s] been introduced at both phases of the trial." Brief for Petitioner 13. 8 In view of the foregoing uncertainty, it would be premature to decide whether such determinations, or any of the others we might conceive as a basis for the Georgia Supreme Court's position, might undermine the confidence we expressed in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), that the Georgia capital-sentencing system, as we understood it then, would avoid the arbitrary and capricious imposition of the death penalty and would otherwise pass constitutional muster. Suffice it to say that the state-law premises of the Georgia Supreme Court's conclusion of state law are relevant to the constitutional issue at hand. 9 The Georgia Supreme Court under certain circumstances will decide questions of state law upon certification from this Court. See Ga.Code § 24-4536 (Supp.1980).4 We invoke that statute to certify the following question: What are the premises of state law that support the conclusion that the death sentence in this case is not impaired by the invalidity of one of the statutory aggravating circumstances found by the jury? 10 The Clerk of this Court is directed to transmit this certificate, signed by THE CHIEF JUSTICE and under the official seal of the Court, as well as the briefs and record filed with the Court, to the Supreme Court of Georgia, and simultaneously to transmit copies of the certificate to the attorneys for the respective parties. 11 It is so ordered. 12 Justice MARSHALL, with whom Justice BRENNAN joins, dissenting. 13 Six years ago in Gregg v. Georgia, 428 U.S. 153, 193, 96 S.Ct. 2909, 2934, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.), this Court declared: 14 "Juries are invariably given careful instructions on the law and how to apply it before they are authorized to decide the merits of a lawsuit. It would be virtually unthinkable to follow any other course in a legal system that has traditionally operated by following prior precedents and fixed rules of law. . . . When erroneous instructions are given, retrial is often required. It is quite simply a hallmark of our legal system that juries be carefully and adequately guided in their deliberations." (Footnote omitted). 15 In today's decision, a majority of this Court intimates that a post hoc construction of a death penalty statute by the State's highest court may remedy the fact that a jury was improperly instructed with respect to the very factors that save the Georgia statute from unconstitutionality. See Gregg v. Georgia, supra. Because I cannot see how the Georgia Supreme Court's response to this Court's certification could constitutionally justify the imposition of the death penalty in this case, I must dissent. 16 * I adhere to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. Gregg v. Georgia, supra, 428 U.S., at 231, 96 S.Ct., at 2973. Even if I believed that the death penalty could constitutionally be imposed under certain circumstances, however, I believe that respondent Stephens' sentence must be vacated and his case remanded to the Georgia state courts for resentencing. II 17 In my opinion, remanding this case for resentencing is compelled by this Court's decisions upholding the constitutionality of the Georgia death penalty statute, and by well-recognized principles of appellate review. Therefore, whether or not the Georgia Supreme Court's construction of the statute in response to this Court's certification might avoid the constitutional infirmity inherent in respondent's sentence in some future case, it can do nothing to alter the fact that respondent's death sentence may have been based in part on consideration of an unconstitutional aggravating circumstance. 18 Under Georgia law, certification is appropriate "[w]hen it shall appear to the Supreme Court of the United States . . . that there are involved in any proceeding before it questions or propositions of the laws of this State which are determinative of said cause and there are no clear controlling precedents in the appellate court decisions of this State." Ga.Code § 24-4536(a) (Supp.1980) (emphasis added). The majority attempts to bring this case within the ambit of this certification procedure by indicating that "[i]t may be that . . . multiple findings of statutory aggravating circumstances are superfluous, or . . . the reviewing court may assume the role of the jury when the sentencing jury recommended the death penalty under legally erroneous instructions." Ante, at 415. The majority then requests the Georgia Supreme Court to clarify "the premises of state law that support the conclusion that the death sentence in this case is not impaired by the invalidity of one of the statutory aggravating circumstances found by the jury." Ante, at 416-417. 19 I wholeheartedly agree that we do not know the answers to these questions. The majority recognizes that we do not possess this information because "[t]he Georgia Supreme Court has never explained the rationale for its position" that a death sentence may be reaffirmed when one of the aggravating circumstances relied on by the jury is declared invalid. Ante, at 415. I submit, however, that we are not alone in our ignorance. There is absolutely no indication that the jury sentencing respondent to death or the judge who instructed that jury was any more aware of the answers to these questions than we are today. Indeed, by certifying these questions to the Georgia Supreme Court, the majority concedes that it was impossible for anyone to know the answers to these questions at the time respondent was sentenced to death, because "there are no controlling precedents" in Georgia on these issues. Given this Court's prior treatment of cases in which a defendant received a sentence, particularly a death sentence, on the basis of erroneous jury instructions, I do not understand how the Georgia Supreme Court's answer to the certified question could possibly be "determinative" of this case. 20 In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), this Court struck down death penalties imposed pursuant to a Georgia statute. Shortly thereafter, the Georgia Legislature enacted the current death penalty statute. This statute provides for a separate sentencing proceeding after the defendant has been found guilty of a capital offense. During the sentencing phase, the trial judge shall instruct the jury1 to consider "any of the [10] statutory aggravating circumstances which may be supported by the evidence." Ga.Code § 27-2534.1(b) (1978). The aggravating circumstances found by the judge to be warranted by the evidence are submitted to the jury in writing to be used during its deliberations. § 27-2534.1(c). If the jury recommends a death sentence, it "shall designate in writing . . . the aggravating circumstance or circumstances which it found beyond a reasonable doubt." Ibid. Even if it finds that one or more aggravating circumstances has been established beyond a reasonable doubt, the jury is not required to impose the death penalty. See Bowen v. State, 241 Ga. 492, 246 S.E.2d 322 (1978). The jury's verdict to impose the death penalty must be unanimous. Miller v. State, 237 Ga. 557, 229 S.E.2d 376 (1976). The trial judge is bound by the jury's recommendation of sentence, whether that recommendation be life or death. Ga.Code §§ 26-3102, 27-2514 (1978). 21 In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), this Court held that this statutory scheme satisfied the constitutional guarantee against cruel and unusual punishment. In reaching this conclusion, the two principal opinions relied heavily on the fact that the aggravating circumstances served to guide the jury's discretion. The joint opinion announcing the judgment of the Court, Justice Stewart emphasized that because "the members of a jury will have had little, if any, previous experience in sentencing," id., at 192, 96 S.Ct., at 2934 (opinion of Stewart, POWELL, and STEVENS, JJ.), they should be given specific standards to guide their sentencing deliberations, such as those provided in the Model Penal Code, which catalogs " 'the main circumstances of aggravation and of mitigation that should be weighed and weighed against each other' " by the jury. Id., at 193, 96 S.Ct., at 2934 (quoting ALI, Model Penal Code § 201.6, Comment 3, p. 71 (Tent.Draft No. 9, 1959)) (emphasis in original). That opinion found that the new Georgia statute satisfied this requirement because, through the statutory aggravating circumstances, "[t]he new Georgia sentencing procedures . . . focus the jury's attention on the particularized nature of the crime and the particularized characteristics of the individual defendant." 428 U.S., at 206, 96 S.Ct., at 2940 (emphasis added). Justice WHITE, joined by THE CHIEF JUSTICE and Justice REHNQUIST, concurring in the judgment, placed an even stronger emphasis on the role of the statutory aggravating circumstances: 22 "The Georgia Legislature has plainly made an effort to guide the jury in the exercise of its discretion, while at the same time permitting the jury to dispense mercy on the basis of factors too intangible to write into a statute. . . . As the types of murders for which the death penalty may be imposed become more narrowly defined and are limited to those which are particularly serious or for which the death penalty is peculiarly appropriate as they are in Georgia by reason of the aggravating-circumstance requirement, it becomes reasonable to expect that juries—even given discretion not to impose the death penalty—will impose the death penalty in a substantial portion of the cases so defined." Id., at 222, 96 S.Ct., at 2948 (first emphasis added). 23 In Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1765, 64 L.Ed.2d 398 (1980) (plurality opinion of Stewart, J., joined by BLACKMUN, POWELL, and STEVENS, JJ.), this Court reaffirmed the role of aggravating circumstances in protecting against the arbitrary imposition of the death penalty. The Godfrey Court addressed the constitutionality of a death sentence imposed in reliance on aggravating circumstance § (b)(7), which allows a jury to impose the death sentence if it finds that the murder "was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." Ga.Code § 27-2534.1(b)(7) (1978). 24 The plurality opinion found: "There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence. A person of ordinary sensibility could fairly characterize almost every murder as 'outrageously or wantonly vile, horrible and inhuman.' " 446 U.S., at 428-429, 100 S.Ct., at 1765. Section (b)(7), if construed broadly enough to encompass every murder, would be unconstitutional because it provides "no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not." Id., at 433, 100 S.Ct., at 1767. The plurality found it significant that this interpretation of § (b)(7) "may . . . have been one to which the members of the jury in this case subscribed," and that, if the jury did hold this view "their preconceptions were not dispelled by the trial judge's sentencing instructions." Id., at 429, 100 S.Ct., at 1765. Therefore, the jury was not given appropriate guidance, and the death sentence could not constitutionally be imposed. 25 In my view, this reasoning requires that respondent's death sentence be vacated and that this case be remanded so he can be resentenced by a properly instructed jury. It is conceded that the jury in this case was instructed on an aggravating circumstance that the Georgia Supreme Court has since declared unconstitutional. If this were the only aggravating circumstance found by the jury, it is also undisputed that the State would be unable to impose the death sentence, see Arnold v. State, 236 Ga. 534, 224 S.E.2d 386 (1976), even if the Georgia Supreme Court determined that the evidence supported a finding of other statutory aggravating circumstances. Cf. Presnell v. Georgia, 439 U.S. 14, 16, 99 S.Ct. 235, 236, 58 L.Ed.2d 207 (1978). Petitioner argues, however, because the jury found two other statutory aggravating circumstances that the Georgia Supreme Court found to be supported by the evidence, that court could reaffirm the death sentence. This argument flies in the face of the reasoning of theGodfrey plurality which found it crucial that the jury's decision to impose the death sentence be guided by clear and appropriate instructions. 26 Moreover, this argument is patently contrary to the settled principle that "if the jury has been instructed to consider several grounds for conviction, one of which proves to be unconstitutional, and the reviewing court is thereafter unable to determine from the record whether the jury relied on the unconstitutional ground, the verdict must be set aside." 631 F.2d 397, 406 (CA5 1980) (case below); see Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). Since 1931, this Court has consistently declined to speculate about whether a particular jury would have reached the same conclusion in the absence of an unconstitutional instruction. See, e.g., id., at 367-368, 51 S.Ct., at 535. Accord, Bachellar v. Maryland, 397 U.S. 564, 570-571, 90 S.Ct. 1312, 1315-1316, 25 L.Ed.2d 570 (1970); Street v. New York, 394 U.S. 576, 585-588, 89 S.Ct. 1354, 1362-1363, 22 L.Ed.2d 572 (1969); Yates v. United States, 354 U.S. 298, 311-312, 77 S.Ct. 1064, 1073, 1 L.Ed.2d 1356 (1957). In light of this Court's consistent recognition that "the penalty of death is qualitatively different from a sentence of imprisonment," Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1980) (opinion of Stewart, POWELL, and STEVENS, JJ.); see, e.g., Eddings v. Oklahoma, 455 U.S. 104, 117-118, 102 S.Ct. 869, 878, 71 L.Ed.2d 1 (1982) (O'CONNOR, J., concurring), there is certainly no reason to engage in such speculation here. Yet, the jury is not required to recommend death even if it finds that one or more aggravating circumstances have been established beyond a reasonable doubt. Therefore, to adopt the bald pronouncement that "[w]here two or more statutory aggravating circumstances are found by the jury, the failure of one circumstance does not so taint the proceedings as to invalidate the other aggravating circumstance found and the sentence of death thereon," Gates v. State, 244 Ga. 587, 599, 261 S.E.2d 349, 358 (1979), we would have to speculate that the jury's decision to impose the death penalty was not influenced by the presence of the unconstitutional aggravating circumstance.2 27 Recognizing that settled law normally requires that sentences arguably imposed on the basis of unconstitutional instructions cannot stand, petitioner and several States in an amicus curiae brief3 attempt to distinguish the Stromberg line of cases by arguing that, as a matter of statutory construction, a jury's finding that 1 of the 10 aggravating circumstances has been established beyond a reasonable doubt is irrelevant to its ultimate conclusion that the death penalty should be imposed. Specifically, petitioner argues that the term "aggravating circumstance" actually has two entirely different meanings, with each meaning representing a separate task that a capital sentencing jury must perform. First, the jury must determine whether any of the 10 statutory "aggravating circumstances" has been established beyond a reasonable doubt. This, petitioner argues, is a threshold determination that only allows the jury to consider the death penalty, but has no impact on whether that penalty should be imposed. After reaching this threshold determination, the jury may consider any "evidence in aggravation" or mitigation in reaching its conclusion as to whether the death penalty should be imposed. According to petitioner, the jury performs this second task free of any influence from the very "legislative guidelines" that, by "focus[ing] the jury's attention on the particularized nature of the crime and the particularized characteristics of the individual defendant," prevent the death penalty from being wantonly and freakishly imposed. Gregg v. Georgia, 428 U.S., at 206-207, 96 S.Ct., at 2940-2941 (joint opinion of Stewart, POWELL, and STEVENS, JJ.). 28 Putting to one side both the plausibility and the constitutionality of petitioner's construction of the Georgia death penalty statute,4 it is patently obvious that this ex post facto attempt to avoid the clear mandate of Stromberg cannot possibly remedy the constitutional infirmity of respondent's sentence. This conclusion is compelled by this Court's decision in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). In Sandstrom, a defendant was convicted of "deliberate homicide," which, under Montana law, required the State to prove that he "purposefully or knowingly" caused the death of the victim. Id., at 512, 99 S.Ct., at 2453. At the close of all the evidence, the judge instructed the jury that " '[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.' " Id., at 513, 99 S.Ct., at 2453. The defendant objected to this instruction on the ground that it unconstitutionally shifted the burden of proof on the issue of intent. On direct appeal, the Montana Supreme Court conceded that shifting the burden of proof in a criminal case was unconstitutional. It nevertheless upheld the challenged instruction on the ground that under its interpretation, the instruction only shifted the burden of production rather than the burden of persuasion. Id., at 513-514, 99 S.Ct., at 2453-2454. In the proceedings before this Court, the State argued that the Montana Supreme Court's interpretation of the effect of the presumption was conclusive on this Court. Id., at 516, 99 S.Ct., at 2455. 29 This Court unanimously5 rejected the State's attempt to avoid the constitutional issue by the use of a post hoc narrowing construction by the State's highest court. While acknowledging that "[t]he Supreme Court of Montana is . . . the final authority on the legal weight to be given a presumption under Montana law, . . . it is not the final authority on the interpretation which a jury could have given the [challenged] instruction." Id., at 516-517, 99 S.Ct., at 2455 (emphasis added). Instead, this Court defined the relevant question as whether "a reasonable juror could well have been misled by the instruction." Id., at 517, 99 S.Ct., at 2455. Even assuming the constitutionality of the Montana Supreme Court's interpretation of the presumption, an interpretation that this Court conceded might have been in the minds of "some jurors," the fact that "a reasonable juror could have given the presumption conclusive or persuasion-shifting effect means that we cannot discount the possibility that Sandstrom's jurors actually did proceed upon one or the other of these latter interpretations." Id., at 519, 99 S.Ct., at 2457 (emphasis added). "Because David Sandstrom's jury may have interpreted the judge's instruction as constituting either a burden-shifting presumption . . . or a conclusive presumption," id., at 524, 99 S.Ct., at 2459, this Court held the instruction unconstitutional and remanded the case to the state courts for proceedings not inconsistent with the opinion.6 30 In my view, the case presently before the Court presents even a stronger case for rejecting the relevance of an ex post facto saving construction. By certifying this question to the Georgia Supreme Court, the majority concedes that this construction has never been explicitly adopted by the Georgia courts. It must also be acknowledged that petitioner's interpretation of the jury's role under the Georgia law is not the only, or even the most plausible, construction of the death penalty statute. A "reasonable juror" could fairly conclude that he or she was required to place special emphasis on the existence of statutory aggravating circumstances, and weigh them against each other and against any mitigating circumstances, when deciding whether or not to impose the death penalty. Cf. Godfrey v. Georgia, 446 U.S., at 428-429, 100 S.Ct., at 1765. Certainly several Members of this Court have operated under this assumption. See Gregg v. Georgia, 428 U.S., at 197-198, 221-222, 96 S.Ct., at 2947; Godfrey v. Georgia, supra, 446 U.S., at 436-437, 100 S.Ct., at 1769 (MARSHALL, J., concurring in judgment); Drake v. Zant, 449 U.S. 999, 1001, 101 S.Ct. 541, 66 L.Ed.2d 297 (1980) (STEWART, J., dissenting from denial of certiorari). 31 If respondent's jury subscribed to this interpretation of their role, "their preconceptions were not dispelled by the trial judge's sentencing instructions." Godfrey, supra, at 429, 101 S.Ct., at 1765. Indeed, everything about the judge's charge highlighted the importance of the aggravating circumstances. Not only were the circumstances submitted to the jury in writing, but also the jury was in turn required to write down each and every aggravating circumstance that it found to be established beyond a reasonable doubt. See Ga.Code § 27-2534.1(c) (1978) discussed supra, at 420. The jury instructions provide absolutely no indication that, after carefully considering each of the statutory aggravating circumstances submitted by the trial judge, the jury should, or even could, discard this list of officially sanctioned grounds for imposing the death penalty in deciding whether to actually sentence respondent to death. 32 Absent even a shred of evidence that respondent's trial judge and jury were cognizant of petitioner's asserted construction of the Georgia death penalty statute, a construction never acknowledged by any Georgia appellate court, we can only speculate whether "the verdict in this case was not decisively affected by an unconstitutional statutory aggravating circumstance." 631 F.2d, at 406. It is precisely to guard against such speculation that this Court has uniformly refused to uphold a conviction or sentence that might have been based even in part on an unconstitutional ground.7 See supra, at 423. Furthermore, in Gregg v. Georgia, supra, 428 U.S., at 189, 96 S.Ct., at 2932, this Court made clear that "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." See alsoFurman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Because nothing the Supreme Court of Georgia can say in response to this Court's certification will assure us that respondent's jury was "suitably directed,"8 I must dissent. 33 Justice POWELL, dissenting. 34 I am in essential agreement with the views expressed by Justice MARSHALL in Part II of his dissenting opinion, and with his conclusion that the death sentence was imposed under instructions that could have misled the jury. I would not hold, however, that the case must be remanded for resentencing by a jury. 35 The Court of Appeals for the Fifth Circuit simply reversed and remanded, thus leaving it to the Georgia Supreme Court to determine whether resentencing by a jury is required in this case. It may be that under Georgia law the State Supreme Court lacks authority to resentence. If that should be the case, I would leave open—also for the Supreme Court of Georgia to decide—whether it has authority to find that the instruction was harmless error beyond a reasonable doubt. 1 The trial judge instructed the sentencing jury as follows: "Gentlemen of the Jury, the defendant in this case has been found guilty at your hands of the offense of Murder, and it is your duty to make certain determinations with respect to the penalty to be imposed as punishment for that offense. Now in arriving at your determinations in this regard you are authorized to consider all of the evidence received in court throughout the trial before you. You are further authorized to consider all facts and circumstances presented in extinuation [sic], mitigation and aggravation of punishment as well as such arguments as have been presented for the State and for the Defense. Under the law of this State every person guilty of Murder shall be punished by death or by imprisonment for life, the sentence to be fixed by the jury trying the case. In all cases of Murder for which the death penalty may be authorized the jury shall consider any mitigating circumstances or aggravating circumstances authorized by law. You may consider any of the following statutory aggravating circumstances which you find are supported by the evidence. One, the offense of Murder was committed by a person with a prior record of conviction for a Capital felony, or the offense of Murder was committed by a person who has a substantial history of serious assaultive criminal convictions. Two, the offense of Murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim. Three, the offense of Murder was committed by a person who has escaped from the lawful custody of a peace officer or place of lawful confinement. These possible statutory circumstances are stated in writing and will be out with you during your deliberations on the sentencing phase of this case. They are in writing here, and I shall send this out with you. If the jury verdict on sentencing fixes punishment at death by electrocution you shall designate in writing, signed by the foreman, the aggravating circumstances or circumstance which you found to have been proven beyond a reasonable doubt. Unless one or more of these statutory aggravating circumstances are proven beyond a reasonable doubt you will not be authorized to fix punishment at death. If you fix punishment at death by electrocution you would recite in the exact words which I have given you the one or more circumstances you found to be proven beyond a reasonable doubt. You would so state in your verdict, and after reciting this you would state, We fix punishment at death. On the other hand, if you recommend mercy for the defendant this will result in imprisonment for life of the defendant. In such case it would not be necessary for you to recite any mitigating or aggravating circumstances as you may find, and you would simply state in your verdict, We fix punishment at life in prison. Now, whatever your verdict may be with respect to the responsibility you have regarding sentencing please write these out, Mr. Foreman, immediately below the previous verdict you have rendered. Be sure that it is dated and that it bears your signature as foreman. Once again when you have arrived at your verdict on the sentencing phase of the case let us know. We will then receive the verdict from you and have it published here in open court. Please retire now and consider the sentence in this case." App. 18-19. 2 See Stevens v. State, 247 Ga. 698, 709, 278 S.E.2d 398, 407 (1981); Green v. State, 246 Ga. 598, 606, 272 S.E.2d 475, 485 (1980), cert. denied, 450 U.S. 936, 101 S.Ct. 1402, 67 L.Ed.2d 372 (1981); Hamilton v. State, 246 Ga. 264, n. 1, 271 S.E.2d 173, 174, n. 1 (1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 900, 66 L.Ed.2d 829 (1981); Brooks v. State, 246 Ga. 262, 263, 271 S.E.2d 172 (1980), cert. denied, 451 U.S. 921, 101 S.Ct. 2000, 68 L.Ed.2d 312 (1981); Collins v. State, 246 Ga. 261, 262, 271 S.E.2d 352, 354 (1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 900, 66 L.Ed.2d 829 (1981); Dampier v. State, 245 Ga. 882, 883, n. 1, 268 S.E.2d 349, 350, n. 1, cert. denied, 449 U.S. 938, 101 S.Ct. 337, 66 L.Ed.2d 161 (1980); Burger v. State, 245 Ga. 458, 461-462, 265 S.E.2d 796, 799-800, cert. denied, 446 U.S. 988, 100 S.Ct. 2975, 64 L.Ed.2d 847 (1980); Gates v. State, 244 Ga. 587, 599, 261 S.E.2d 349, 358 (1979), cert. denied, 445 U.S. 938, 100 S.Ct. 1332, 63 L.Ed.2d 772 (1980); Stephens v. State, 237 Ga. 259, 261-262, 227 S.E.2d 261, 263, cert. denied, 429 U.S. 986, 97 S.Ct. 508, 50 L.Ed.2d 599 (1976). 3 Last Term, Members of this Court expressed different assumptions about the meaning—and the constitutionality—of the Georgia Supreme Court's position. In Drake v. Zant, 449 U.S. 999, 101 S.Ct. 541, 66 L.Ed.2d 297 (1980), the Court declined to grant certiorari and vacate the judgments in two Georgia cases in which the death sentences—premised in part on the (b)(7) aggravating circumstance—were imposed prior to our decision in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). Justice STEVENS, concurring in the disposition, expressed the opinion that the Georgia Supreme Court's position was so clear that there was no need to remand the cases for reconsideration in light of Godfrey. 449 U.S., at 1000, 101 S.Ct., at 541. Dissenting from the denial of certiorari, Justice Stewart stated that if one aggravating circumstance found by the jury "could not constitutionally justify the death sentence, Georgia law would prohibit a further finding that the error was harmless simply because of the existence of the other aggravating circumstance." Id., at 1001, 101 S.Ct., at 541. He believed that the Georgia Supreme Court's position on the issue was inconsistent with the Georgia capital punishment scheme because "only the trial judge or jury can know and determine what to do when upon appellate review it has been concluded that a particular aggravating circumstance should not have been considered in sentencing the defendant to death." Ibid. Justice WHITE, also dissenting, would have remanded for reconsideration in light of Godfrey, a disposition that "would allow the Georgia Supreme Court in the first instance to determine whether the death penalty should be sustained without regard to the validity of the Godfrey circumstance." 449 U.S., at 1002, 101 S.Ct., at 542. He did "not understand the Georgia cases . . . to hold either that the Georgia Supreme Court is without power to set aside a death penalty if it sustains only one of the aggravating circumstances found by the jury or that, although the court has that power, it invariably will not disturb the death penalty in such situations." Ibid. 4 "When it shall appear to the Supreme Court of the United States . . . that there are involved in any proceeding before it questions or propositions of the laws of this State which are determinative of said cause and there are no clear controlling precedents in the appellate court decisions of this State, such Federal appellate court may certify such questions or propositions of the laws of Georgia to this court for instructions concerning such questions or propositions." 1 In bench trials, the judge must consider these factors. 2 To date, the majority of state courts that have confronted this issue have declined to speculate whether the jury would still have returned a death sentence in the absence of the subsequently invalidated aggravating circumstance. See, e.g., Williams v. State, 274 Ark. 9, 11-13, 621 S.W.2d 686, 687-688 (1981); State v. Irwin, 304 N.C. 93, 106-108, 282 S.E.2d 439, 448-449 (1981); State v. Moore, 614 S.W.2d 348, 351-352 (Tenn.1981); Hopkinson v. State, 632 P.2d 79, 171-172 (Wyo.1981). See also Cook v. State, 369 So.2d 1251, 1255-1257 (Ala.1979). 3 The States of Alabama, California, Florida, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, South Carolina, and Utah submitted an amicus brief on behalf of petitioner. It is interesting to note that the appellate courts of Alabama and North Carolina have already implicitly rejected the construction now urged by these States as amici. See n. 2, supra. 4 In my view, if the Georgia Supreme Court adopted this interpretation of the death penalty statute, it would raise serious questions as to the constitutionality of this statute under Gregg. 5 Justice REHNQUIST, joined by THE CHIEF JUSTICE, filed a separate opinion concurring in both the judgment and the opinion of the Court. 6 The Sandstrom Court also rejected the State's argument that the jury need not have relied on the challenged instruction in finding Sandstrom guilty of intentional murder. The State reasoned that because the tainted instruction could arguably be viewed as only relating to the defendant's "purpose," the jury might have convicted Sandstrom solely on the ground that he "knowingly" caused the death of the victim. Because the statute only requires that the crime be committed "purposefully or knowingly," the State argued that there was an alternative basis on which the conviction could be sustained. 442 U.S., at 525, 99 S.Ct., at 2460. Relying on Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), this Court refused to engage in such speculation, since "even if a jury could have ignored the presumption and found defendant guilty because he acted knowingly, we cannot be certain that this is what they did do." 442 U.S., at 526, 99 S.Ct., at 2460 (emphasis in original). There is similarly no way to tell whether respondent's jury adopted the Georgia Supreme Court's yet undisclosed interpretation of the Georgia death penalty statute. 7 It is irrelevant whether the jury's determination was only partially based on the presence of the unconstitutional aggravating circumstance. As this Court held in Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969), "even assuming that the record precludes the inference that appellant's conviction might have been based solely on [an unconstitutional ground], we are still bound to reverse if the conviction could have been based upon both" an unconstitutional and a constitutional ground. Id., at 587, 89 S.Ct., at 1363 (emphasis in original). 8 The majority's implication that certifying this case will give the Georgia Supreme Court an opportunity to clarify whether it has the power to "assume the role of the jury when the sentencing jury recommended the death penalty under legally erroneous instructions," ante, at 415, does not alter my conclusion. In affirming respondent's death sentence, the Georgia Supreme Court did not purport to exercise such authority. Nor did the State argue that such action by the Georgia Supreme Court was permissible in the proceedings before this Court. Indeed, prior to this Court's action today, it has always been assumed that "only the trier of fact may impose a death sentence." Willis v. Balkcom, 451 U.S. 926, 928, 101 S.Ct. 2003, 2005, 68 L.Ed.2d 315 (1981) (MARSHALL, J., joined by BRENNAN and Stewart, JJ., dissenting from denial of certiorari). In any event, a "reviewing court can determine only whether a rational jury might have imposed the death penalty if it had been properly instructed; it is impossible for it to say whether a particular jury would have so exercised its discretion if it had known the law." Godfrey v. Georgia, 446 U.S. 420, 437, 100 S.Ct. 1759, 1769, 64 L.Ed.2d 398 (1980) (MARSHALL, J., concurring in judgment).

01

456 U.S. 430 102 S.Ct. 1865 72 L.Ed.2d 237 John O'DELL et al., Petitioners,v.Andrew ESPINOZA, etc. et al. No. 81-534. Argued April 26, 1982. Decided May 3, 1982. PER CURIAM. 1 Under 28 U.S.C. § 1257, this Court has jurisdiction to review only "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had." Because the Colorado Supreme Court, 633 P.2d 455, remanded this case for trial, its decision is not final "as an effective determination of the litigation." Market Street R. Co. v. Railroad Comm'n of Cal., 324 U.S. 548, 551, 65 S.Ct. 770, 773, 89 L.Ed. 1171 (1945). Although there is a limited set of situations in which we have found finality as to the federal issue despite the ordering of further proceedings in the lower state courts, see Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), this case does not fit into any of those categories. We therefore dismiss for want of jurisdiction. 2 It is so ordered.

89

456 U.S. 431 102 S.Ct. 1867 72 L.Ed.2d 239 Donald FINNEGAN et al., Petitionersv.Harold D. LEU et al. No. 80-2150. Argued Feb. 24, 1982. Decided May 17, 1982. Syllabus Sections 101(a)(1) and (2) of Title I of the Labor-Management Reporting and Disclosure Act of 1959 (Act) guarantee equal voting rights and rights of free speech and assembly to "[e]very member of a labor organization," and § 609 of Title VI makes it unlawful for a union "to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled" under the Act. Section 102 provides that any person whose rights under Title I have been infringed by any violation thereof may bring an action in federal district court for appropriate relief. Petitioners were discharged from their appointed positions as business agents for respondent local union by respondent union president following his election over a candidate supported by petitioners. Petitioners were also members of the union, and their discharges did not render them ineligible to continue union membership. Petitioners filed suit against respondents in Federal District Court alleging that their discharges violated §§ 101(a)(1) and (2). The District Court granted summary judgment for respondents, holding that the Act does not protect a union employee from discharge by the union president if the employee's rights as a union member are not affected. The Court of Appeals affirmed. Held : Petitioners have failed to establish a violation of the Act. Pp. 1870-1873. (a) It is apparent both from the language of §§ 101(a)(1), (2), and 609, and from Title I's legislative history, that Congress sought to protect rank-and-file union members, not the job security or tenure of union officers or employees as such. Pp. 1870-1871. (b) The term "discipline," as used in § 609, refers only to retaliatory actions that affect a union member's rights or status as a member of the union. The disciplinary sanctions of fine, suspension, and expulsion enumerated in § 609 are all punitive actions taken against union members as members. In contrast, discharge from union employment does not impinge upon the incidents of union membership, and affects union members only to the extent that they also happen to be union employees. Moreover, Congress used essentially the same language elsewhere in the Act with the specific intent not to protect a member's status as a union employee or officer. Accordingly, removal from appointive union employment is not within the scope of the union sanctions explicitly prohibited by § 609. Pp. 1871-1872. (c) Petitioners were not prevented from exercising their rights under §§ 101(a)(1) and (2) as union members to campaign for respondent union president's opponent and to vote in the union election, and they allege only an indirect interference with those rights. Whatever limits Title I places on a union's authority to utilize dismissal from union office as part of an attempt to suppress dissent within the union, it does not restrict the freedom of an elected union leader to choose staff members whose views are compatible with his own. Neither the language nor legislative history of the Act suggests that it was intended to address the issue of union patronage, its overriding objective being rather to ensure that unions would be democratically governed and responsive to the union membership's will as expressed in open elections. Pp. 1872-1873. 652 F.2d 58 (6th Cir.), affirmed. Samuel G. Bolotin, Toledo, Ohio, for petitioners. Theodore M. Iorio, Toledo, Ohio, for respondents. Chief Justice BURGER. 1 The question presented in this case is whether the discharge of a union's appointed business agents by the union president, following his election over the candidate supported by the business agents, violated the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, 29 U.S.C. § 401 et seq. The Court of Appeals, 652 F.2d 58 (6th Cir.) held that the Act did not protect the business agents from discharge. We granted certiorari to resolve Circuit conflicts,1 454 U.S. 813, 102 S.Ct. 89, 70 L.Ed.2d 82 (1981), and we affirm. 2 * In December 1977, respondent Harold Leu defeated Omar Brown in an election for the presidency of Local 20 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, a labor organization representing workers in a 14-county area of northwestern Ohio.2 During the vigorously contested campaign, petitioners, then business agents of Local 20, openly supported the incumbent president, Brown. Upon assuming office in January 1978, Leu discharged petitioners and the Local's other business agents, all of whom had been appointed by Brown following his election in 1975.3 Leu explained that he felt the agents were loyal to Brown, not to him, and therefore would be unable to follow and implement his policies and programs. 3 Local 20's bylaws—which were adopted by, and may be amended by, a vote of the union membership—provide that the president shall have authority to appoint, direct, and discharge the Union's business agents. Bylaws of Teamsters, Chauffeurs, Warehousemen and Helpers Union Local No. 20, Art. IX, § 3 D, Joint Exhibit 1, p. 15 (1975). The duties of the business agents include participation in the negotiating of collective-bargaining agreements, organizing of union members, and processing of grievances. In addition, the business agents, along with the president, other elected officers, and shop stewards, sit as members of the Stewards Council, the legislative assembly of the Union. Petitioners had come up through the union ranks, and as business agents they were also members of Local 20. Discharge from their positions as business agents did not render petitioners ineligible to continue their union membership. 4 Petitioners filed suit in the United States District Court, alleging that they had been terminated from their appointed positions in violation of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. §§ 411(3/5)(1), 411(A)(2), 412, and 529. The District Court granted summary judgment for respondents Leu and Local 20, holding that the Act does not protect a union employee from discharge by the president of the union if the employee's rights as a union member are not affected. Navarro v. Leu, 469 F.Supp. 832 (1979). The United States Court of Appeals for the Sixth Circuit affirmed, concluding "that a union president should be able to work with those who will cooperate with his program and carry out his directives, and that these business agents, who served at the pleasure of the union president, and actively supported the president's opponent could be removed from their employment as union business agents." App. to Pet. for Cert. A3. II 5 The Labor-Management Reporting and Disclosure Act of 1959 was the product of congressional concern with widespread abuses of power by union leadership. The relevant provisions of the Act had a history tracing back more than two decades in the evolution of the statutes relating to labor unions. Tensions between union leaders and the rank-and-file members and allegations of union wrongdoing led to extended congressional inquiry. As originally introduced, the legislation focused on disclosure requirements and the regulation of union trusteeships and elections. However, various amendments were adopted, all aimed at enlarged protection for members of unions paralleling certain rights guaranteed by the Federal Constitution; not surprisingly, these amendments ultimately enacted as Title I of the Act, 29 U.S.C. §§ 411-415 were introduced under the title of "Bill of Rights of Members of Labor Organizations."4 The amendments placed emphasis on the rights of union members to freedom of expression without fear of sanctions by the union, which in many instances could mean loss of union membership and in turn loss of livelihood. Such protection was necessary to further the Act's primary objective of ensuring that unions would be democratically governed and responsive to the will of their memberships. See 105 Cong.Rec. 6471-6472, 6476, 15530 (1959), 2 Leg.Hist. 1098-1099, 1103, 1566. 6 Sections 101(a)(1) and (2) of the Act, 29 U.S.C. §§ 411(a)(1) and (2), on which petitioners rely, guarantee equal voting rights, and rights of speech and assembly, to "[e]very member of a labor organization" (emphasis added).5 In addition, § 609 of the Act, 29 U.S.C. § 529, renders it unlawful for a union or its representatives "to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this Act." (Emphasis added.)6 It is readily apparent, both from the language of these provisions and from the legislative history of Title I, that it was rank-and-file union members—not union officers or employees, as such—whom Congress sought to protect.7 7 Petitioners held a dual status as both employees and members of the Union. As members of Local 20, petitioners undoubtedly had a protected right to campaign for Brown and support his candidacy. At issue here is whether they were thereby immunized from discharge at the pleasure of the president from their positions as appointed union employees. III 8 Petitioners contend that discharge from a position as a union employee constitutes "discipline" within the meaning of § 609; and that termination of union employment is therefore unlawful when predicated upon an employee's exercise of rights guaranteed to members under the Act. However, we conclude that the term "discipline," as used in § 609, refers only to retaliatory actions that affect a union member's rights or status as a member of the union. Section 609 speaks in terms of disciplining "members"; and the three disciplinary sanctions specifically enumerated—fine, suspension, and expulsion—are all punitive actions taken against union members as members.8 In contrast, discharge from union employment does not impinge upon the incidents of union membership, and affects union members only to the extent that they happen also to be union employees. See Sheridan v. Carpenters Local No. 626, 306 F.2d 152, 156 (CA3 1962). We discern nothing in § 609, or its legislative history, to support petitioners' claim that Congress intended to establish a system of job security or tenure for appointed union employees. 9 Congress used essentially the same language elsewhere in the Act with the specific intent not to protect a member's status as a union employee or officer. Section 101(a)(5), 29 U.S.C. § 411(a)(5), states that "[n]o member of any labor organization may be fined, suspended, expelled, or otherwise disciplined" without enumerated procedural protections. The Conference Report accompanying S. 1555 as finally enacted, H.R.Conf.Rep.No. 1147, 86th Cong., 1st Sess., 31 (1959), 1 Leg.Hist. 935, explains that this "prohibition on suspension without observing certain safeguards applies only to suspension of membership in the union; it does not refer to suspension of a member's status as an officer of the union " (emphasis added). This too is a persuasive indication that the virtually identical language in § 609 was likewise meant to refer only to punitive actions diminishing membership rights, and not to termination of a member's status as an appointed union employee.9 10 We hold, therefore, that removal from appointive union employment is not within the scope of those union sanctions explicitly prohibited by § 609. IV 11 Our analysis is complicated, however, by the fact that § 102, 29 U.S.C. § 412, provides independent authority for a suit against a union based on an alleged violation of Title I of the Act. Section 102 states that 12 "[a]ny person whose rights secured by the provisions of this title have been infringed by any violation of this title may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate." 13 Although the intended relationship between §§ 102 and 609 is not entirely clear, it seems evident that a litigant may maintain an action under § 102—to redress an "infringement" of "rights secured" under Title I—without necessarily stating a violation of § 609.10 14 The question still remains, however, whether petitioners' "rights secured" under Title I were "infringed" by the termination of their union employment. Petitioners, as union members, had a right under §§ 101(a)(1) and (2) to campaign for Brown and to vote in the union election, but they were not prevented from exercising those rights. Rather, petitioners allege only an indirect interference with their membership rights, maintaining that they were forced to "choos[e] between their rights of free expression . . . and their jobs." See Retail Clerks Union Local 648 v. Retail Clerks International Assn., 299 F.Supp. 1012, 1021 (DDC 1969). 15 We need not decide whether the retaliatory discharge of a union member from union office—even though not "discipline" prohibited under § 609—might ever give rise to a cause of action under § 102. For whatever limits Title I places on a union's authority to utilize dismissal from union office as "part of a purposeful and deliberate attempt . . . to suppress dissent within the union," cf. Schonfeld v. Penza, 477 F.2d 899, 904 (CA2 1973), it does not restrict the freedom of an elected union leader to choose a staff whose views are compatible with his own.11 Indeed, neither the language nor the legislative history of the Act suggests that it was intended even to address the issue of union patronage.12 To the contrary, the Act's overriding objective was to ensure that unions would be democratically governed, and responsive to the will of the union membership as expressed in open, periodic elections. See Wirtz v. Hotel Employees, 391 U.S. 492, 497, 88 S.Ct. 1743, 1746, 20 L.Ed.2d 763 (1968). Far from being inconsistent with this purpose, the ability of an elected union president to select his own administrators is an integral part of ensuring a union administration's responsiveness to the mandate of the union election. 16 Here, the presidential election was a vigorous exercise of the democratic processes Congress sought to protect. Petitioners appointed by the defeated candidate—campaigned openly against respondent Leu, who was elected by a substantial margin. The Union's bylaws, adopted, and subject to amendment, by a vote of the union membership, grant the president plenary authority to appoint, suspend, discharge, and direct the Union's business agents, who have significant responsibility for the day-to-day conduct of union affairs. Nothing in the Act evinces a congressional intent to alter the traditional pattern which would permit a union president under these circumstances to appoint agents of his choice to carry out his policies. 17 No doubt this poses a dilemma for some union employees; if they refuse to campaign for the incumbent they risk his displeasure, and by supporting him risk the displeasure of his successor. However, in enacting Title I of the Act, Congress simply was not concerned with perpetuating appointed union employees in office at the expense of an elected president's freedom to choose his own staff. Rather, its concerns were with promoting union democracy, and protecting the rights of union members from arbitrary action by the union or its officers. 18 We therefore conclude that petitioners have failed to establish a violation of the Act. Accordingly, the decision of the Court of Appeals is 19 Affirmed. 20 Justice BLACKMUN, with whom Justice BRENNAN joins, concurring. 21 I am not prepared to hold that a newly elected president of a local union may discipline, without violating the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, 29 U.S.C. § 401 et seq., and as a matter of retaliation, all union member-employees who opposed his candidacy. As the Court notes, a union member possesses, under the Act, rights to freedom of expression and of speech and assembly, ante, at 1870-1871, and a right to support the candidate of his choice. 22 I must assume that what the Court holds today is that the newly elected president may discharge the union's appointed business agents and other appointed union member-employees who will be instrumental in evolving the president's administrative policies. See Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Indeed, the Court uses the terms "staff," ante, at 1873, and "his own administrators," ibid. In addition, this particular union's bylaws expressly give the president plenary authority over the business agents. With that much, I have no difficulty. 23 On the understanding, but only on the understanding, that the Court by its opinion is not reaching out further to decide the same issue with respect to nonpolicymaking employees, that is, rank-and-file member-employees (a matter which, for me, presents another case for another day), I join the Court's opinion. 1 See, e.g., Lamb v. Miller, 212 U.S.App.D.C. 393, 660 F.2d 792 (1981); Maceira v. Pagan, 649 F.2d 8 (CA1 1981); Newman v. Local 1101, Communications Workers, 570 F.2d 439 (CA2 1978); Bradford v. Textile Workers Local 1093, 563 F.2d 1138 (CA4 1977); Gabauer v. Woodcock, 520 F.2d 1084 (CA8 1975), cert. denied, 423 U.S. 1061, 96 S.Ct. 800, 46 L.Ed.2d 653 (1976); Wambles v. International Brotherhood of Teamsters, 488 F.2d 888 (CA5 1974); Wood v. Dennis, 489 F.2d 849 (CA7 1973) (en banc ), cert. denied, 415 U.S. 960, 94 S.Ct. 1490, 39 L.Ed.2d 575 (1974); Grand Lodge of the International Assn. of Machinists v. King, 335 F.2d 340 (CA9), cert. denied, 379 U.S. 920, 85 S.Ct. 274, 13 L.Ed.2d 334 (1964); Sheridan v. Carpenters Local No. 626, 306 F.2d 152 (CA3 1962). 2 Brown challenged the election results and, following an investigation, the Secretary of Labor determined that unlawful employer contributions had affected the outcome of the election. The Secretary filed suit in the United States District Court for the Northern District of Ohio, and that court ordered a rerun election under the Secretary's supervision; the Court of Appeals for the Sixth Circuit affirmed. Marshall v. Local 20, Teamsters, 611 F.2d 645 (1979). In the second election, Leu again defeated Brown. Brown and Leu had previously opposed each other in the 1974 election for the presidency. Although Leu defeated Brown by a slight margin, the election was set aside by the International Union because of irregularities at the polling places. Brown won the second election, which was held in 1975 under the supervision of a panel from the International Union. 3 When Brown was elected president in 1975, see n. 2, supra, the incumbent business agents resigned. 4 The original "Bill of Rights" amendment was introduced on the floor of the Senate by Senator McClellan and adopted by a vote of 47-46. 105 Cong.Rec. 6469-6493 (1959), 2 National Labor Relations Board, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, pp. 1096-1119 (1959) (hereafter Leg.Hist.). However, a compromise version of the amendment introduced by Senator Kuchel was substituted shortly thereafter, 105 Cong.Rec. 6716-6727 (1959), 2 Leg.Hist. 1229-1239, and later approved by the House of Representatives as part of the Landrum-Griffin bill, H.R. 8400, 86th Cong., 1st Sess. (1959), 1 Leg.Hist. 628-633. See 105 Cong.Rec. 15711, 15859-15860, 1692-1702 (1959), 2 Leg.Hist. 1645, 1691-1692, 1693-1702. 5 Section 101(a)(1) provides: "Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization's constitution and bylaws." Section 101(a)(2) provides: "Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations." 6 Section 609 provides: "It shall be unlawful for any labor organization, or any officer, agent, shop steward, or other representative of a labor organization, or any employee thereof to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this Act. The provisions of section 102 shall be applicable in the enforcement of this section." 7 The provisions of Title I consistently refer to the rights of union "members." As originally passed by the Senate, § 101(a)(4)—which in its present form protects the right of "any member" to institute legal proceedings against the union, 29 U.S.C. § 411(a)(4)—applied to "any member or officer " of a labor organization (emphasis added). S. 1555, 86th Cong., 1st Sess., § 101(a)(4) (1959), 1 Leg.Hist. 520. However, the words "or officer" were deleted from the Landrum-Griffin bill, H.R. 8400, 86th Cong., 1st Sess., § 101(a)(4) (1959), 1 Leg.Hist. 630-631, and the House version was retained in Conference, see H.R.Conf.Rep.No.1147, 86th Cong., 1st Sess., 31 (1959), 1 Leg.Hist. 935. See also Sheridan v. Carpenters Local No. 626, 306 F.2d, at 156-157. 8 Compare § 201(a)(5)(H) of the Act, 29 U.S.C. § 431(a)(5)(H), which requires reporting on the procedures for "discipline or removal of officers or agents for breaches of their trust" (emphasis added). 9 In Grand Lodge of International Assn. of Machinists v. King, 335 F.2d, at 344, the court held that Congress had used the "identical words . . . with quite different meanings" in the two sections. The court found that the "legislative gloss" on the words "otherwise disciplined" in § 101(a)(5) stemmed primarily from congressional concern that "wrongdoing union officials"—and particularly those guilty of misappropriating union funds—might be permitted "to remain in control while the time-consuming 'due process' requirements of the section were met." Id., at 341-342. See 105 Cong.Rec. 17899 (1959) (remarks of Sen. Kennedy). However, viewing this concern as inapplicable with regard to § 609, the court concluded that "although Congress did not intend the words 'otherwise discipline' to include removal from union office in section 101(a)(5), it did intend the words to include such action in section 609." 335 F.2d, at 345. See also Maceira v. Pagan, 649 F.2d, at 14; Wood v. Dennis, 489 F.2d, at 853-854. We agree that the purposes of the two sections are different, and that the distinction drawn in King is one Congress plausibly could have chosen to make. However, we are hard pressed to discern any such distinction from either the language or legislative history of the Act. Certainly one would expect that if Congress had intended identical language to have substantially different meanings in different sections of the same enactment it would have manifested its intention in some concrete fashion. See Wood v. Dennis, supra, at 858 (Stevens, J., concurring in result). 10 Section 609, of course, applies to disciplinary action taken in retaliation for the exercise of any right secured under the Act, whereas § 102 protects only rights secured by Title I. Although the two sections may be somewhat duplicative as regards union discipline imposed in retaliation for the exercise of Title I rights, this seems due in large part to the fact that the provisions derived from different sources and were originally intended to serve quite different purposes. Section 102 was first included as part of the so-called Kuchel Amendment, see n. 4, supra, and was designed to enforce the provisions of Title I by creating an individual right of action for union members. 105 Cong.Rec. 6719 (1959), 2 Leg.Hist. 1232. In contrast, the precursor of § 609 created criminal penalties for retaliatory discipline, and was included in the Senate bill prior to the addition of the bill of rights, see S. 1555, 86th Cong., 1st Sess., § 506 (1959) (as reported), 2 Leg.Hist. 390; it apparently was thought to be primarily applicable to violations of the election provisions. See 105 Cong.Rec. 6534 (1959), 2 Leg.Hist. 1140; Rothman, Legislative History of the "Bill of Rights" for Union Members, 45 Minn.L.Rev. 199, 218 (1960). The Landrum-Griffin bill retained this provision, but "temper[ed] the remedy," 105 Cong.Rec. 15531 (1959), 2 Leg.Hist. 1567 (remarks of Rep. Griffin), providing for civil enforcement by the Secretary of Labor instead of criminal sanctions. H.R. 8400, 86th Cong., 1st Sess., § 609 (1959), 1 Leg.Hist. 676. Finally, one day before passage of the Landrum-Griffin bill, § 609 was amended to authorize private suits by making "[t]he provisions of section 102 . . . applicable in the enforcement of this section." The amendment was promoted by Congressmen who thought that enforcement by the Secretary would lead to "unnecessary injection of the executive branch on the Federal level into law enforcement matters," 105 Cong.Rec. 15830 (1959), 2 Leg.Hist. 1662 (remarks of Rep. Cramer). See Rothman, supra, at 219. 11 We leave open the question whether a different result might obtain in a case involving nonpolicymaking and nonconfidential employees. 12 We think it virtually inconceivable that Congress would have prohibited the longstanding practice of union patronage without any discussion in the legislative history of the Act. See Wood v. Dennis, 489 F.2d, at 858 (1973) (en banc ) (Stevens, J., concurring in result). Had such a result been contemplated, it undoubtedly would have encountered substantial resistance. Moreover, Congress likely would have made some express accommodation to the needs of union employers to appoint and remove policymaking officials. See ibid.

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456 U.S. 604 102 S.Ct. 2226 72 L.Ed.2d 366 Morgan M. FINLEY, Clerk of the Circuit Court of Cook County, Illinois, petitioner,v.Toni MURRAY No. 80-2205 Supreme Court of the United States May 17, 1982 On writ of certiorari to the United States Court of Appeals for the Seventh Circuit. May 17, 1982. PER CURIAM. 1 The writ of certiorari is dismissed as improvidently granted.

89

456 U.S. 512 102 S.Ct. 1912 72 L.Ed.2d 299 NORTH HAVEN BOARD OF EDUCATION, et al., Petitioners,v.Terrel H. BELL, Secretary, Department of Education, et al. No. 80-986. Argued Dec. 9, 1981. Decided May 17, 1982. Syllabus Section 901(a) of Title IX of the Education Amendments of 1972 provides that "no person," on the basis of sex, shall "be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." Section 902 authorizes each agency awarding federal financial assistance to any education program to promulgate regulations ensuring that aid recipients adhere to § 901(a), and as a sanction for noncompliance provides for termination of federal funds limited to the particular program, or part thereof, in which such noncompliance has been found. Pursuant to § 902, the Department of Health, Education, and Welfare (HEW), interpreting "person" in § 901(a) to encompass employees as well as students, issued regulations (Subpart E) prohibiting federally funded education programs from discriminating on the basis of sex with respect to employment. Petitioners, federally funded public school boards, when threatened with enforcement proceedings for alleged violations of § 901(a) with respect to board employees, brought separate suits challenging HEW's authority to issue the Subpart E regulations on the alleged ground that § 901(a) was not intended to apply to employment practices, and seeking declaratory and injunctive relief. The District Court in each case granted the school board's motion for summary judgment. In a consolidated appeal, the Court of Appeals reversed, holding that § 901(a) was intended to prohibit employment discrimination and that the Subpart E regulations were consistent with § 902. Held : 1. Employment discrimination comes within Title IX's prohibition. Pp. 520-535. (a) While § 901(a) does not expressly include employees within its scope or expressly exclude them, its broad directive that "no person" may be discriminated against on the basis of gender, on its face, includes employees as well as students. Pp. 520-522. (b) Title IX's legislative history corroborates the conclusion that employment discrimination was intended to come within its prohibition. Pp.523-530. (c) Title IX's postenactment history provides additional evidence of Congress' desire to ban employment discrimination in federally financed education programs. Pp. 530-535. 2. The Subpart E regulations are valid. Pp. 535-540. (a) An agency's authority under Title IX both to promulgate regulations and to terminate funds is subject to the program-specific limitation of §§ 901(a) and 902. The Subpart E regulations are not inconsistent with this restriction. Pp. 535-539. (b) But whether termination of petitioners' federal funds is permissible under Title IX is a question that must be answered by the District Court in the first instance. Pp. 539-540. 629 F.2d 773 (2nd Cir.), affirmed and remanded. 1 Susan K. Krell, Hartford, Conn., for petitioner North Haven Bd. of Ed. 2 Paul E. Knag, Stamford, Conn., for petitioner Trumbull Bd. of Ed. 3 Sol. Gen. Rex E. Lee, Washington, D. C., for the Federal respondents. 4 Beverly J. Hodgson, Bridgeport, Conn., for respondent Linda Potz. 5 Justice BLACKMUN delivered the opinion of the Court. 6 At issue here is the validity of regulations promulgated by the Department of Education pursuant to Title IX of the Education Amendments of 1972, Pub.L.92-318, 86 Stat. 373, as amended, 20 U.S.C. § 1681 et seq. These regulations prohibit federally funded education programs from discriminating on the basis of gender with respect to employment. 7 * Title IX proscribes gender discrimination in education programs or activities receiving federal financial assistance. Patterned after Title VI of the Civil Rights Act of 1964, Pub.L.88-352, 78 Stat. 252, 42 U.S.C. § 2000d et seq. (1976 ed. and Supp.IV), Title IX, as amended, contains two core provisions. The first is a "program-specific" prohibition of gender discrimination: 8 "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . ." § 901(a), 20 U.S.C. § 1681(a). 9 Nine statutory exceptions to § 901(a)'s coverage follow. See §§ 901(a)(1)-(9).1 10 The second core provision relates to enforcement. Section 902, 20 U.S.C. § 1682, authorizes each agency awarding federal financial assistance to any education program to promulgate regulations ensuring that aid recipients adhere to § 901(a)'s mandate. The ultimate sanction for noncompliance is termination of federal funds or denial of future grants.2 Like § 901, § 902 is program-specific: 11 "[S]uch termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding [of noncompliance] 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 . . . ."3 12 In 1975, the Department of Health, Education, and Welfare (HEW) invoked its § 902 authority to issue regulations governing the operation of federally funded education programs.4 These regulations extend, for example, to policies involving admissions, textbooks, and athletics. See 34 CFR pt. 106 (1980).5 Interpreting the term "person" in § 901(a) to encompass employees as well as students, HEW included among the regulations a series entitled "Subpart E," which deals with employment practices, ranging from job classifications to pregnancy leave. See 34 CFR §§ 106.51-106.61 (1980). Subpart E's general introductory section provides: 13 "No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination in employment, or recruitment, consideration, or selection therefor, whether full-time or part-time, under any education program or activity operated by a recipient which receives or benefits from Federal financial assistance." § 106.51(a)(1).6 II 14 Petitioners are two Connecticut public school boards that brought separate suits challenging HEW's authority to issue the Subpart E regulations. Petitioners contend that Title IX was not meant to reach the employment practices of educational institutions. 15 A. The North Haven case. The North Haven Board of Education (North Haven) receives federal funds for its education programs and activities and is therefore subject to Title IX's prohibition of gender discrimination. Since the 1975-1976 school year, North Haven has devoted between 46.8% and 66.9% of its federal assistance to the salaries of its employees; this practice is expected to continue.7 16 In January 1978, Elaine Dove, a tenured teacher in the North Haven public school system, filed a complaint with HEW, alleging that North Haven had violated Title IX by refusing to rehire her after a one-year maternity leave. In response to this complaint, HEW began to investigate the school board's employment practices and sought from petitioner information concerning its policies on hiring, leaves of absence, seniority, and tenure. Asserting that HEW lacked authority to regulate employment practices under Title IX, North Haven refused to comply with the request. 17 When HEW then notified petitioner that it was considering administrative enforcement proceedings, North Haven brought this action in the United States District Court for the District of Connecticut. The complaint sought a declaratory judgment that the Subpart E regulations exceeded the authority conferred on HEW by Title IX, and an injunction prohibiting HEW from attempting to terminate the school district's federal funds on the basis of those regulations. The parties filed cross-motions for summary judgment, and on April 24, 1979, the District Court granted North Haven's motion. App. to Pet. for Cert. 51A. Agreeing with petitioner that Title IX was not intended to apply to employment practices, the court invalidated the employment regulations and permanently enjoined HEW from interfering with North Haven's federal funds because of noncompliance with those regulations. 18 B. The Trumbull case. The Trumbull Board of Education (Trumbull) likewise receives financial support from the Federal Government and must therefore adhere to the requirements of Title IX and appropriate implementing regulations. In October 1977, HEW began investigating a complaint filed by respondent Linda Potz, a former guidance counselor in the Trumbull school district. Potz alleged that Trumbull had discriminated against her on the basis of gender with respect to job assignments, working conditions, and the failure to renew her contract. In September 1978, HEW notified Trumbull that it had violated Title IX and warned that corrective action, including respondent's reinstatement, must be taken. 19 Trumbull then filed suit in the United States District Court for the District of Connecticut, contending that HEW's Title IX employment regulations were invalid and seeking declaratory and injunctive relief. On the basis of its decision in North Haven, the District Court granted Trumbull's motion for summary judgment on May 24, 1979. App. to Pet. for Cert. 76A.8 The court subsequently amended the judgment, on Trumbull's request, to include injunctive and declaratory relief similar to that ordered in North Haven's case. Id., at 77A, 91A-92A. 20 C. The appeal. The two cases were consolidated on appeal, and the Court of Appeals for the Second Circuit reversed. North Haven Bd. of Ed. v. Hufstedler, 629 F.2d 773 (1980). Finding the language of § 901 inconclusive, the court examined the legislative history and concluded that the provision was intended to prohibit employment discrimination. The court also found the Subpart E regulations consistent with § 902, which the court read as directing only that "any termination of funds be limited to the particular program or programs in which noncompliance with § 901 is found . . . ." 629 F.2d, at 785 (emphasis added). Section 902, the Second Circuit held, does not circumscribe HEW's authority to issue regulations prohibiting gender discrimination in employment and does not require the Department "to specify prior to termination which particular programs receiving financial assistance are covered by its regulations." Ibid. Because HEW had not exercised its § 902 authority to terminate federal assistance to either North Haven or Trumbull, the court declined to decide whether HEW could do so in these cases. The court remanded the cases to the District Court to determine whether petitioners had violated the HEW regulations and, if so, what remedies were appropriate. 21 Because other federal courts have invalidated the employment regulations as unauthorized by Title IX,9 we granted certiorari to resolve the conflict. 450 U.S. 909, 101 S.Ct. 1345, 67 L.Ed.2d 332 (1981). III A. 22 Our starting point in determining the scope of Title IX is, of course, the statutory language. See Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 330, 98 S.Ct. 2370, 2375, 57 L.Ed.2d 239 (1978). Section 901(a)'s broad directive that "no person" may be discriminated against on the basis of gender appears, on its face, to include employees as well as students. Under that provision, employees, like other "persons," may not be "excluded from participation in," "denied the benefits of," or "subjected to discrimination under" education programs receiving federal financial support. 23 Employees who directly participate in federal programs or who directly benefit from federal grants, loans, or contracts clearly fall within the first two protective categories described in § 901(a). See Islesboro School Comm. v. Califano, 593 F.2d 424, 426 (CA1), cert. denied, 444 U.S. 972, 100 S.Ct. 467, 62 L.Ed.2d 387 (1979). In addition, a female employee who works in a federally funded education program is "subjected to discrimination under" that program if she is paid a lower salary for like work, given less opportunity for promotion, or forced to work under more adverse conditions than are her male colleagues. See Dougherty Cty. School System v. Harris, 622 F.2d 735, 737-738 (CA5 1980), cert. pending sub nom. Bell v. Dougherty Cty. School System, No. 80-1023. 24 There is no doubt that "if we are to give [Title IX] the scope that its origins dictate, we must accord it a sweep as broad as its language." United States v. Price, 383 U.S. 787, 801, 86 S.Ct. 1152, 1160, 16 L.Ed.2d 267 (1966); see also Griffin v. Breckenridge, 403 U.S. 88, 97, 91 S.Ct. 1790, 1795, 29 L.Ed.2d 338 (1971); Daniel v. Paul, 395 U.S. 298, 307-308, 89 S.Ct. 1697, 1702, 23 L.Ed.2d 318 (1969); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437, 88 S.Ct. 2186, 2202, 20 L.Ed.2d 1189 (1968); Piedmont & Northern R. Co. v. ICC, 286 U.S. 299, 311-312, 52 S.Ct. 541, 545, 76 L.Ed. 1115 (1932). Because § 901(a) neither expressly nor impliedly excludes employees from its reach, we should interpret the provision as covering and protecting these "persons" unless other considerations counsel to the contrary. After all, Congress easily could have substituted "student" or "beneficiary" for the word "person" if it had wished to restrict the scope of § 901(a).10 25 Petitioners, however, point to the nine exceptions to § 901(a)'s coverage set forth in §§ 901(a)(1)-(9). See n. 1, supra. The exceptions, the school boards argue, are directed only at students, and thus indicate that § 901(a) similarly applies only to students. But the exceptions are not concerned solely with students and student activities: two of them exempt an entire class of institutions—religious and military schools—and are not limited to student-related activities at such schools. See §§ 901(a)(3), (4). Moreover, petitioners' argument rests on an inference that is by no means compelled; in fact, the absence of a specific exclusion for employment among the list of exceptions tends to support the Court of Appeals' conclusion that Title IX's broad protection of "person[s]" does extend to employees of educational institutions. See Andrus v. Glover Construction Co., 446 U.S. 608, 616-617, 100 S.Ct. 1905, 1910, 64 L.Ed.2d 548 (1980).11 26 Although the statutory language thus seems to favor inclusion of employees, nevertheless, because Title IX does not expressly include or exclude employees from its scope, we turn to the Act's legislative history for evidence as to whether Congress meant somehow to limit the expansive language of § 901.12 B 27 In the early 1970's, several attempts were made to enact legislation banning discrimination against women in the field of education. Although unsuccessful, these efforts included prohibitions against discriminatory employment practices.13 28 In 1972, the provisions ultimately enacted as Title IX were introduced in the Senate by Senator Bayh during debate on the Education Amendments of 1972. In addition to prohibiting gender discrimination in federally funded education programs and threatening termination of federal assistance for noncompliance, the amendment included provisions extending the coverage of Title VII and the Equal Pay Act to educational institutions. Summarizing his proposal, Senator Bayh divided it into two parts first, the forerunner of § 901(a), and then the extensions of Title VII and the Equal Pay Act: 29 "Amendment No. 874 is broad, but basically it closes loopholes in existing legislation relating to general education programs and employment resulting from those programs. . . . [T]he heart of this amendment is a provision banning sex discrimination in educational programs receiving Federal funds. The amendment would cover such crucial aspects as admissions procedures, scholarships, and faculty employment, with limited exceptions. Enforcement powers include fund termination provisions—and appropriate safeguards—parallel to those found in title VI of the 1964 Civil Rights Act. Other important provisions in the amendment would extend the equal employment opportunities provisions of title VII of the 1964 Civil Rights Act to educational institutions, and extend the Equal Pay for Equal Work Act to include executive, administrative and professional women." 118 Cong.Rec. 5803 (1972) (emphasis added). 30 The Senator's description of § 901(a), the "heart" of his amendment, indicates that it, as well as the Title VII and Equal Pay Act provisions, was aimed at discrimination in employment.14 31 Similarly, in a prepared statement summarizing the amendment, Senator Bayh discussed the general prohibition against gender discrimination: 32 "Central to my amendment are sections 1001-1005, which would prohibit discrimination on the basis of sex in federally funded education programs. . . . 33 * * * * * 34 "This portion of the amendment covers discrimination in all areas where abuse has been mentioned—employment practices for faculty and administrators, scholarship aid, admissions, access to programs within the institution such as vocational education classes, and so forth." 118 Cong.Rec. 5807 (1972) (emphasis added). 35 Petitioners observe that the discussion of this portion of the amendment appears under the heading "A. Prohibition of Sex Discrimination in Federally Funded Education Programs," while the provisions involving Title VII and the Equal Pay Act are summarized under the heading "B. Prohibition of Education-Related Employment Discrimination." But we are not willing to ascribe any particular significance to these headings. The Title VII and Equal Pay Act portions of the Bayh amendment are more narrowly focused on employment discrimination than is the general ban on gender discrimination, and the headings reflect that difference. Especially in light of the explicit reference to employment practices in the description of the amendment's general provision, however, the headings do not negate Senator Bayh's intent that employees as well as students be protected by the first portion of his amendment.15 36 The final piece of evidence from the Senate debate on the Bayh amendment appears during a colloquy between Senator Bayh and Senator Pell, chairman of the Senate Subcommittee on Education and floor manager of the education bill. In response to Senator Pell's inquiry about the scope of the sections that in large part became §§ 901(a) and (b), Senator Bayh stated: 37 "As the Senator knows, we are dealing with three basically different types of discrimination here. We are dealing with discrimination in admission to an institution, discrimination of available services or studies within an institution once students are admitted, and discrimination in employment within an institution, as a member of a faculty or whatever. 38 "In the area of employment, we permit no exceptions." Id., at 5812 (emphasis added).16 39 Although the statements of one legislator made during debate may not be controlling, see, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 311, 99 S.Ct. 1705, 1722, 60 L.Ed.2d 208 (1979), Senator Bayh's remarks, as those of the sponsor of the language ultimately enacted, are an authoritative guide to the statute's construction. See, e.g., FEA v. Algonquin SNG, Inc., 426 U.S. 548, 564, 96 S.Ct. 2295, 2304, 49 L.Ed.2d 49 (1976) (such statements "deserv[e] to be accorded substantial weight . . ."); NLRB v. Fruit Packers, 377 U.S. 58, 66, 84 S.Ct. 1063, 1068, 12 L.Ed.2d 129 (1964); Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394-395, 71 S.Ct. 745, 750-751, 95 L.Ed. 1035 (1951). And, because §§ 901 and 902 originated as a floor amendment, no committee report discusses the provisions; Senator Bayh's statements—which were made on the same day the amendment was passed, and some of which were prepared rather than spontaneous remarks—are the only authoritative indications of congressional intent regarding the scope of §§ 901 and 902. 40 The legislative history in the House is even more sparse. H.R. 7248, 92d Cong., 1st Sess. (1971), the Higher Education Act of 1971, contained, as part of its Title X, a general prohibition against gender discrimination in federally funded education programs that was identical to the corresponding section of the Bayh amendment and to § 901(a) as ultimately enacted. But § 1004 of Title X, like § 604 of Title VI, see 42 U.S.C. § 2000d-3, provided that nothing in Title X authorized action "by any department or agency with respect to any employment practice . . . except where a primary objective of the Federal financial assistance is to provide employment." The debate on Title X included no discussion of this limitation. See 117 Cong.Rec. 39248-39263 (1971).17 41 When the House and Senate versions of Title IX were submitted to the Conference Committee, § 1004 was deleted. The Conference Reports simply explained: 42 "[T]he House amendment, but not the Senate amendment, provided that nothing in the title authorizes action by any department or agency with respect to any employment practice of any employer, employment agency, or labor organization except where a primary objective of the Federal financial assistance is to provide employment. The House recedes." S.Conf.Rep.No.92-798, p. 221 (1972); H.R.Conf.Rep.No.92-1085, p. 221 (1972). 43 Expressly a conscious choice, therefore, the omission of § 1004 suggests that Congress intended that § 901 prohibit gender discrimination in employment. 44 Petitioners and the dissent contend, however, that § 1004 was deleted in order to avoid an inconsistency: Title IX included provisions relating to the Equal Pay Act,18 which obviously concerned employment, and § 1004 conflicted with those portions of the Act. See Sex Discrimination Regulations: Hearings before the Subcommittee on Postsecondary Education of the House Committee on Education and Labor, 94th Cong., 1st Sess., 409 (1975) (1975 Hearings) (remarks of Rep. O'Hara) (arguing that Title IX was a "cut and paste job," using "a Xerox" of Title VI, and that § 1004 "got in through a drafting error"). As the Court of Appeals observed, however, the Conference Committee could easily have altered the wording of § 1004 to make clear that its limitation applied only to § 90119 or could have noted in the Conference Reports that the omission was necessitated by the apparent inconsistency. Instead, by stating that "[t]he House recedes," the Reports suggest that the Senate version of Title IX, which was intended to ban discriminatory employment practices, prevailed for substantive reasons. See Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 199-200, 95 S.Ct. 392, 400-401, 42 L.Ed.2d 378 (1974) (deletion of a provision by a Conference Committee "militates against a judgment that Congress intended a result that it expressly declined to enact"); Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S., at 391-392, 71 S.Ct., at 749. Identical language—"The House recedes" or "The Senate recedes" appears in the Conference Reports with respect to all other changes made in Title IX during the conference. See S.Conf.Rep.No.92-798, pp. 221-222 (1972). See also 118 Cong.Rec. 18437 (1972) (letters printed in the record during the Senate debate on the Conference Report, which imply that employment discrimination is prohibited by § 901). 45 Petitioners insist additionally that a specific exclusion for employment, such as that contained in § 1004, was unnecessary to limit the scope of § 901. Pointing out that Title IX was patterned after Title VI of the Civil Rights Act of 1964, the school boards contend that the addition of § 604 to Title VI was not viewed by Congress as diminishing the scope of the Act; rather, petitioners argue, it was agreed that Title VI would not prohibit employment discrimination even before § 604 made the exclusion explicit. 46 This focus on the history of Title VI—urged by petitioners and adopted by the dissent—is misplaced. It is Congress' intention in 1972, not in 1964, that is of significance in interpreting Title IX. See Cannon v. University of Chicago, 441 U.S. 677, 710-711, 99 S.Ct. 1946, 1964-1965, 60 L.Ed.2d 560 (1979). The meaning and applicability of Title VI are useful guides in construing Title IX, therefore, only to the extent that the language and history of Title IX do not suggest a contrary interpretation. Moreover, whether § 604 clarified or altered the scope of Title VI,20 it is apparent that § 601 alone was not considered adequate to exclude employees from the statute's coverage. If Congress had intended that Title IX have the same reach as Title VI, therefore, we assume that it would have enacted counterparts to both § 601 and § 604. For although two statutes may be similar in language and objective, we must not fail to give effect to the differences between them. See Lorillard v. Pons, 434 U.S. 575, 584-585, 98 S.Ct. 866, 872, 55 L.Ed.2d 40 (1978). 47 In our view, the legislative history thus corroborates our reading of the statutory language and verifies the Court of Appeals' conclusion that employment discrimination comes within the prohibition of Title IX.21 C 48 The postenactment history of Title IX provides additional evidence of the intended scope of the Title and confirms Congress' desire to ban employment discrimination in federally financed education programs. Following the passage of Title IX, Senator Bayh published in the Congressional Record a summary of the final version of the bill. That description expressly distinguishes Title VI of the Civil Rights Act of 1964 with respect to employment practices: 49 "Title VI . . . specifically excludes employment from coverage (except where the primary objective of the federal aid is to provide employment). There is no similar exemption for employment in the sex discrimination provisions relating to federally assisted education programs." 118 Cong.Rec. 24684, n. 1 (1972) (first emphasis in original; second emphasis added). 50 See also 120 Cong.Rec. 39992 (1974) (remarks of Sen. Bayh). 51 Then, in June 1974, HEW published proposed Title IX regulations pursuant to § 902. See 39 Fed.Reg. 22228 (1974). Included among these regulations was Subpart E, containing provisions prohibiting discriminatory employment practices in federally funded education programs. During the comment period, nearly 10,000 formal responses to the regulations were submitted, reputedly the most HEW had ever received on one of its proposals. See Salomone, Title IX and Employment Discrimination: A Wrong in Search of a Remedy, 9 J.Law & Ed. 433, 436 (1980). But not one suggested that § 901 was not meant to prohibit discriminatory employment practices. See 1975 Hearings 479 (statement of Peter E. Holmes, Director of the Office for Civil Rights). 52 On June 4, 1975, HEW published its final Title IX regulations, see 40 Fed.Reg. 24128 (1975), and, as required by § 431(d)(1) of the General Education Provisions Act, Pub.L.93-380, 88 Stat. 567, as amended, 20 U.S.C. § 1232(d)(1), submitted the regulations to Congress for review. This "laying before" provision was designed to afford Congress an opportunity to examine a regulation and, if it found the regulation "inconsistent with the Act from which it derives its authority . . .," to disapprove it in a concurrent resolution. If no such disapproval resolution was adopted within 45 days, the regulation would become effective. 53 Resolutions of disapproval were introduced in both Houses of Congress. The two Senate resolutions, which did not mention the employment regulations, were not acted upon.22 In the House, the Subcommittee on Postsecondary Education of the House Committee on Education and Labor held six days of hearings to determine whether the HEW regulations were "consistent with the law and with the intent of the Congress in enacting the law." 1975 Hearings 1 (remarks of Rep. O'Hara). One witness expressed opposition to the employment regulations, interpreting the legislative history much as petitioners have. Id., at 406-408 (statement of Janet L. Kuhn); see also Kuhn, 65 Geo.L.J., at 49. Senator Bayh testified, however, that the regulations, "as the Congress mandated, call for equality in admissions . . . and in the case of teachers and other educational personnel, employment, pay and promotions." 1975 Hearings 169.23 And HEW Secretary Weinberger stated that he did not see "any way you can find that employees do not participate in education programs and activities receiving Federal assistance, and, therefore, they are within the protected class . . . ." Id., at 478. See also id., at 140 (statement of Jean Simmons, President, Federation of Organizations for Professional Women); 154-155 (statement of Rep. Carr); 164 (statement of Rep. Mink); 329 (statement of Dr. Bernice Sandler, Director, Project of the Status and Education of Women, Association of American Colleges). 54 Following the hearings, members of the Subcommittee on Postsecondary Education introduced concurrent resolutions disapproving certain portions of the HEW regulations, but not referring specifically to the employment regulations. H.R.Con.Res. 329, 94th Cong., 1st Sess. (1975); H.R.Con.Res. 330, 94th Cong., 1st Sess. (1975); see 121 Cong.Rec. 21687 (1975). Representatives Quie and Erlenborn introduced an amendment to H.R.Con.Res. 330 that explicitly sought to disapprove the employment regulations as inconsistent with Title IX. See Unpublished Amendment to H.R.Con.Res. 330, quoted in 629 F.2d, at 783.24 Neither resolution was passed, and HEW's regulations went into effect on July 21, 1975. 55 Admittedly, Congress' failure to disapprove the HEW regulations does not necessarily demonstrate that it considered those regulations valid and consistent with the legislative intent. See § 431(d)(1) of the General Education Provisions Act (as amended approximately four months after the Title IX regulations went into effect), 20 U.S.C. § 1232(d)(1). But the postenactment history of Title IX does indicate that Congress was made aware of the Department's interpretation of the Act and of the controversy surrounding the regulations governing employment, and it lends weight to the argument that coverage of employment discrimination was intended. See Sibbach v. Wilson & Co., 312 U.S. 1, 14-16, 61 S.Ct. 422, 426-427, 85 L.Ed. 479 (1941); Comment, 1976 B.Y.U.L.Rev., at 153-157. And the relatively insubstantial interest given the resolutions of disapproval that were introduced seems particularly significant since Congress has proceeded to amend § 901 when it has disagreed with HEW's interpretation of the statute.25 While amending these other portions of § 901, however, Congress has not seen fit to disturb the Subpart E regulations. 56 In fact, Congress has refused to pass bills that would have amended § 901 to limit its coverage of employment discrimination. On the day the 45-day review period for the HEW regulations expired, Senator Helms introduced a bill that would have added a provision to Title IX stating that "[n]othing in [§ 901] shall apply to employees of any educational institution subject to this title." S.2146, § 2(1), 94th Cong., 1st Sess. (1975); see 121 Cong.Rec. 23845-23847 (1975). No action was taken on the bill. Similarly, Senator McClure sponsored an amendment to S.2657, 94th Cong., 2d Sess. (1976), the Education Amendments of 1976, which would have restricted the meaning of the term "educational program or activity" in § 901(a) to the "curriculum or graduation requirements of the institutions . . ." receiving federal funds. 122 Cong.Rec. 28136 (1976). Senator Bayh successfully opposed the amendment, in part on the ground that it "would exempt those areas of traditional discrimination against women that are the reason for the congressional enactment of title IX[,]" including "employment and employment benefits . . . ." Id., at 28144. The McClure amendment was rejected. Id., at 28147. 57 Although postenactment developments cannot be accorded "the weight of contemporary legislative history, we would be remiss if we ignored these authoritative expressions concerning the scope and purpose of Title IX. . . ." Cannon v. University of Chicago, 441 U.S., at 687, n. 7, 99 S.Ct., at 1952, n. 7. Where "an agency's statutory construction has been 'fully brought to the attention of the public and the Congress,' and the latter has not sought to alter that interpretation although it has amended the statute in other respects, then presumably the legislative intent has been correctly discerned." United States v. Rutherford, 442 U.S. 544, 554, n. 10, 99 S.Ct. 2470, 2476, n. 10, 61 L.Ed.2d 68 (1979), quoting Apex Hosiery Co. v. Leader, 310 U.S. 469, 489, 60 S.Ct. 982, 989, 84 L.Ed. 1311 (1940). See also Cannon v. University of Chicago, 441 U.S., at 702-703, 99 S.Ct., at 1960; NLRB v. Bell Aerospace Co., 416 U.S. 267, 275, 94 S.Ct. 1757, 1762, 40 L.Ed.2d 134 (1974); United States v. Bergh, 352 U.S. 40, 46-47, 77 S.Ct. 106, 109-110, 1 L.Ed.2d 102 (1956). These subsequent events therefore lend credence to the Court of Appeals' interpretation of Title IX.26 IV 58 Although we agree with the Second Circuit's conclusion that Title IX proscribes employment discrimination in federally funded education programs, we find that the Court of Appeals paid insufficient attention to the "program-specific" nature of the statute. The court acknowledged that, under § 902, termination of funds "shall be limited in its effect to the particular program, or part thereof, in which . . . noncompliance has been . . . found," but implied that the Department's authority to issue regulations is considerably broader. See 629 F.2d, at 785-786.27 We disagree. 59 It is not only Title IX's funding termination provision that is program-specific. The portion of § 902 authorizing the issuance of implementing regulations also provides: 60 "Each Federal department and agency which is empowered to extend Federal financial assistance to any education program or activity . . . is authorized and directed to effectuate the provisions of section 901 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." (Emphasis added.) 61 Certainly, it makes little sense to interpret the statute, as respondents urge, to authorize an agency to promulgate rules that it cannot enforce. And § 901(a) itself has a similar program-specific focus: it forbids gender discrimination "under any education program or activity receiving Federal financial assistance . . . ." 62 Title IX's legislative history corroborates its general program-specificity. Congress failed to adopt proposals that would have prohibited all discriminatory practices of an institution that receives federal funds. See 117 Cong.Rec. 30155-30157, 30408 (1971) (Sen. Bayh's 1971 amendment); H.R. 5191, 92d Cong., 1st Sess., § 1001(b) (1971) (administration proposal); 1970 Hearings 690-691 (Dept. of Justice's proposed alternative to § 805 of H.R. 16098); cf. Title IX, § 904 (proscribing discrimination against the blind by a recipient of federal assistance with no program-specific limitation). In contrast, Senator Bayh indicated that his 1972 amendment, which in large part was ultimately adopted, was program-specific. See 118 Cong.Rec. 5807 (1972) (observing that the amendment "prohibit[s] discrimination on the basis of sex in federally funded education programs," and that "[t]he effect of termination of funds is limited to the particular entity and program in which such noncompliance has been found . . ."); cf. 117 Cong.Rec. 39256 (1971) (colloquies between Reps. Green and Waggoner and between Reps. Green and Steiger). Finally, we note that language in §§ 601 and 602 of Title VI, virtually identical to that in §§ 901 and 902 and on which Title IX was modeled, has been interpreted as being program-specific. See Board of Public Instruction v. Finch, 414 F.2d 1068 (CA5 1969). We conclude, then, that an agency's authority under Title IX both to promulgate regulations and to terminate funds is subject to the program-specific limitation of §§ 901 and 902. Cf. Cannon v. University of Chicago, 441 U.S., at 690-693, 99 S.Ct., at 1954-1955. 63 Examining the employment regulations with this restriction in mind, we nevertheless reject petitioners' contention that the regulations are facially invalid. Although their import is by no means unambiguous, we do not view them as inconsistent with Title IX's program-specific character. The employment regulations do speak in general terms of an educational institution's employment practices, but they are limited by the provision that states their general purpose: "to effectuate title IX . . .[,] which is designed to eliminate (with certain exceptions) discrimination on the basis of sex in any education program or activity receiving Federal financial assistance . . . ." 34 CFR § 106.1 (1980) (emphasis added).28 64 HEW's comments accompanying publication of its final Title IX regulations confirm our view that Subpart E is consistent with the Act's program-specificity.29 The Department recognized that § 902 limited its authority to terminate funds to particular programs that were found to have violated Title IX, and it continued: 65 "Therefore, an education program or activity or part thereof operated by a recipient of Federal financial assistance administered by the Department will be subject to the requirements of this regulation ifit [30] receives or benefits from such assistance. This interpretation is consistent with the only case specifically ruling on the language contained in title VI, which holds that Federal funds may be terminated under title VI upon a finding that they 'are infected by a discriminatory environment . . .' Board of Public Instruction of Taylor County, Florida v. Finch, 414 F.2d 1068, 1078-79 (5th Cir. 1969)." 40 Fed.Reg. 24128 (1975). 66 By expressly adopting the Fifth Circuit opinion construing Title VI as program-specific, HEW apparently indicated its intent that the Title IX regulations be interpreted in like fashion. So read, the regulations conform with the limitations Congress enacted in §§ 901 and 902. 67 Whether termination of petitioners' federal funds is permissible under Title IX is a question that must be answered by the District Court in the first instance. Similarly, we do not undertake to define "program" in this opinion. Neither of the cases before us advanced beyond a motion for summary judgment, and the record therefore does not reflect whether petitioners' employment practices actually discriminated on the basis of gender or whether any such discrimination comes within the prohibition of Title IX. Neither school board opposed HEW's investigation into its employment practices on the grounds that the complaining employees' salaries were not funded by federal money, that the employees did not work in an education program that received federal assistance, or that the discrimination they allegedly suffered did not affect a federally funded program.31 Instead, petitioners disputed the Department's authority to regulate any employment practices whatsoever, and the District Court adopted that view, which we find to be error. Accordingly, we affirm the judgment of the Court of Appeals but remand the case for further proceedings consistent with this opinion. 68 It is so ordered. 69 Justice POWELL, with whom THE CHIEF JUSTICE and Justice REHNQUIST join, dissenting. 70 Title IX of the Education Amendments of 1972, 86 Stat. 373, as amended, 20 U.S.C. § 1681 et seq., prohibits discrimination on the basis of sex in education programs and activities receiving federal funds. In 1975, the Department of Health, Education, and Welfare (HEW)1 promulgated regulations prohibiting discrimination on the basis of gender in employment by fund recipients. 34 CFR § 106.51(a)(1). Today, the Court upholds the validity of these regulations, relying on the statutory language, its legislative history, and several postenactment events. Because I believe the Court's interpretation is neither consistent with the statutory language nor supported by its legislative history, I dissent.2 71 * Although the Court begins with the language of the statute, it quotes the relevant language in its entirety only in the opening paragraphs of the opinion. In the section considering the statute's meaning, the Court quotes two words of the statute and paraphrases the rest, thereby suggesting an interpretation actually at odds with the language used in the statute. Thus, according to the Court, "[s]ection 901(a)'s broad directive that 'no person' may be discriminated against on the basis of gender appears, on its face, to include employees as well as students." Ante, at 520. This is not what the statutory language provides. In relevant part, the statute states: 72 "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. . . ." Education Amendments of 1972, § 901(a), 20 U.S.C. § 1681(a). 73 A natural reading of these words would limit the statute's scope to discrimination against those who are enrolled in, or who are denied the benefits of, programs or activities receiving federal funding. It tortures the language chosen by Congress to conclude that not only teachers and administrators, but also secretaries and janitors, who are discriminated against on the basis of sex in employment, are thereby (i) denied participation in a program or activity;3 (ii) denied the benefits of a program or activity; or (iii) subject to discrimination under an education program or activity. Moreover, Congress made no reference whatever to employers or employees in Title IX, in sharp contrast to quite explicit language in other statutes regulating employment practices.4 74 It is noteworthy that not one of the other five Courts of Appeals to consider the question before us reached the conclusion that HEW's interpretation is supported by the statutory language. The issue was presented initially to the Court of Appeals for the First Circuit in Islesboro School Committee v. Califano, 593 F.2d 424, 426, cert. denied, 444 U.S. 972, 100 S.Ct. 467, 62 L.Ed.2d 387 (1979), and that decision has been followed by most other Courts of Appeals to consider the question. There, the court concluded that "[t]he language of section 901, 20 U.S.C. § 1681(a), on its face, is aimed at the beneficiaries of the federal monies, i.e., either students attending institutions receiving federal funds or teachers engaged in special research being funded by the United States government." The court went on to point out that this reading of "the plain language of the statute is buttressed by an examination of the specific exemptions mentioned in the statute," all of which relate to students, not employees.5 Ibid. In the next appellate decision, Romeo Community Schools v. HEW, 600 F.2d 581, cert. denied, 444 U.S. 972, 100 S.Ct. 467, 62 L.Ed.2d 388 (1979), the Court of Appeals for the Sixth Circuit also rejected the interpretation of the statute now relied on by this Court, noting: "[A]s actually written, the statute is not nearly so broad. The words 'no person' are modified by later language which clearly limits their meaning." 600 F.2d, at 584. The court concluded that the statute "reaches only those types of disparate treatment" that involve discrimination against program beneficiaries.6 Ibid. II A. 75 The Court acknowledges, as it must, that § 901 of Title IX "does not expressly include . . . employees." But it finds a strong negative inference in the fact that § 901 does not "exclude employees from its scope." Ante, at 522. The Court then turns to the legislative history for evidence as to whether or not § 901 was meant to prohibit employment discrimination. Ibid. I agree with the several Courts of Appeals that have concluded unequivocally that the statutory language cannot fairly be read to proscribe employee discrimination. Only rarely may legislative history be relied upon to read into a statute operative language that Congress itself did not include. To justify such a reading of a statute, the legislative history must show clearly and unambiguously that Congress did intend what it failed to state.7 The Court's elaborate exposition of the history of Title IX falls far short of this standard. 76 Title IX originated in a floor amendment sponsored by Senator Bayh to Senate bill S. 659, 92d Cong., 2d Sess. (1972). The amendment was intended to close loopholes in earlier civil rights legislation; three problem areas had been identified in hearings by a special House Committee in 1970. See Discrimination Against Women: Hearings on Section 805 of H.R. 16098 before the Special Subcommittee on Education of the House Committee on Education and Labor, 91st Cong., 2d Sess. (1970). Title VII of the Civil Rights Act of 1964, though generally barring employment discrimination on the basis of sex, race, religion, or national origin, did not apply to discrimination "with respect to the employment of individuals to perform work connected with the educational activities of [educational] institutions." Pub.L. 88-352, Title VII, § 702, 78 Stat. 255. And the Equal Pay Act of 1963 banned discrimination in wages on the basis of sex, 29 U.S.C. § 206(d)(1), but it did not apply to administrative, executive, or professional workers, including teachers. See 29 U.S.C. § 213(a)(1) (1970 ed.) (no longer in force). Finally, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, barred discrimination on the basis of "race, color, or national origin," but not sex, in any federally funded programs and activities. 77 The Bayh floor amendment, No. 874, introduced in 1972, 118 Cong.Rec. 5803 (1972) (print of amendment), closed these loopholes. Section 1005 amended Title VII to cover employment discrimination in educational institutions. Ibid. Sections 1009-1010 amended the Equal Pay Act so that discrimination in pay on the basis of sex was barred, even for teachers and other professionals. Ibid. And §§ 1001-1003 created a new Title IX banning discrimination on the basis of sex in federally funded educational programs and activities, thus effectively extending Title VI's prohibition to sex discrimination in such programs. 78 Since the amendments to Title VII and the Equal Pay Act explicitly covered discrimination in employment in educational institutions, there was no need to include §§ 1001-1003 of the Bayh amendment to proscribe such discrimination. Instead, Title IX presumably was enacted, as its language clearly indicates, to bar discrimination against beneficiaries of federally funded educational programs and activities. This interpretation of Title IX is confirmed by the fact that it was modeled after Title VI, a statute limited in its scope to discrimination against beneficiaries of federally funded programs, not general employment practices of fund recipients.8 42 U.S.C. § 2000d-3.9 And, as this Court noted in Cannon v. University of Chicago, 441 U.S. 677, 694-701, 99 S.Ct. 1946, 1956-1960, 60 L.Ed.2d 560 (1979), when Congress passed Title IX, it expected the new provision to be interpreted consistently with Title VI, which had been its model. B 79 The Court discounts the importance of Title VI to the proper interpretation of Title IX for three reasons. First, it notes that "[i]t is Congress' intention in 1972, not in 1964, that is of significance in interpreting Title IX." Ante, at 529 (citing Cannon v. University of Chicago, supra, at 710-711, 99 S.Ct., at 1964-1965). This point begs the question, however, since there is no evidence that in 1972, when it passed Title IX, Congress thought Title VI applied to employment discrimination. The second reason advanced by the Court for disregarding Title VI is that it, unlike Title IX, includes a section, i.e., § 604, 42 U.S.C. § 2000d-3, expressly stating that Title VI applies only to discrimination against fund beneficiaries, not to employment discrimination per se. But in an earlier version of the legislation that was to become Title IX, the amendment was drafted as a modification of Title VI, simply adding the word "sex." In the end, it is true, Title IX was enacted as a statute separate from Title VI, but the reason for this approach was strategic, not substantive. Supporters feared that if Title VI were opened for amendment, Title VI itself might be "gutted" on the floor of the Congress. Sex Discrimination Regulations: Review of Regulations to Implement Title IX, Hearings Before the Subcommittee on Postsecondary Education and Labor of the House Committee on Education and Labor, 94th Cong., 1st Sess., 409 (1975) (1975 Hearings). 80 Finally, to break the link between Titles VI and IX, the Court stresses that the House version of the Senate's Bayh amendment originally contained a provision, § 1004, equivalent to § 604 of Title VI, explicitly stating that no section of the 1972 legislation applied to discrimination in employment, but this provision was eliminated by the Conference. Ante, at 527-528. A strong argument, however, can be made that there was a nonsubstantive reason for eliminating § 1004 from the House bill. In 1975 hearings before the House Subcommittee on Postsecondary Education and Labor, Representative O'Hara, Chairman of that Subcommittee, while explaining the background of Title IX to a witness, noted that this change was made at Conference simply to eliminate, as quietly as possible, a recently discovered drafting error. 1975 Hearings 409. Even without reference to Representative O'Hara's remarks, made in 1975, it is clear that, at the time of the Conference on the House bill and the Senate's Bayh amendment, § 1004 of the House bill was a drafting mistake; it stated that no section of the House bill applied to employment, though sections of the House bill, as well as the Senate version, contained express changes to the employment discrimination provisions of Title VII and the Equal Pay Act. Since the analogous provision of Title VI, § 604, had been regarded as a mere clarification,10 the Court is on weak ground in arguing that the Conference Report's use of the ritualistic words "the House recedes" reveals a substantive change rather than the quiet correction of an obvious drafting error at a very late stage in the legislative process. C 81 In concluding that the legislative history indicates Title IX was intended to extend to employment discrimination, the Court is forced to rely primarily on the statements of a single Senator.11 The first statement, ante, at 524 (quoting 118 Cong.Rec. 5803 (1972)), is ambiguous. Senator Bayh did state that faculty employment would be covered by his amendment after mentioning the sections enacting Title IX but prior to any mention of those amending Title VII and the Equal Pay Act. Immediately thereafter, however, he stated that Title IX's enforcement powers paralleled those in Title VI. Yet Title VI has never provided for fund termination to redress discrimination in employment. 82 Next, the Court quotes Bayh's statements that (i) he regarded "sections 1001-1005" as "[c]entral to [his] amendment" and (ii) "[t]his portion of the amendment covers discrimination in all areas," including employment. Ante, at 525 (quoting 118 Cong.Rec. 5807 (1972)). But § 1005 of the Bayh Amendment is the section amending Title VII and thus §§ 1001-1005 cover employment discrimination regardless of whether Title IX does.12 Moreover, the Court uses an ellipsis rather than include the following words from the second Bayh statement: 83 "Discrimination against the beneficiaries of federally assisted programs and activities is already prohibited by title VI of the 1964 Civil Rights Act, but unfortunately the prohibition does not apply to discrimination on the basis of sex. In order to close this loophole, my amendment sets forth prohibition and enforcement provisions which generally parallel the provisions of title VI." 118 Cong.Rec. 5807 (1972) (in ellipsis, ante, at 525). 84 Thus, for a second time, Bayh indicated to the Senate that he regarded Title IX of his amendment as parallel to Title VI rather than as a substantial departure from Title VI. 85 In the third Bayh statement, ante, at 526 (quoting 118 Cong.Rec. 5812 (1972)), the Senator was responding to a question from Senator Pell regarding Title IX, and the Court assumes that each sentence in that response refers to Title IX. But, as the Court of Appeals for the First Circuit noted in Islesboro : 86 "A fair reading both of the colloquy . . ., as well as the discussion immediately preceding and following the above-quoted passage, indicates that Senator Bayh divided his analysis into three sections, two of which were specifically aimed at students (admissions and services), the third at employees (employment). While Senator Bayh's response was more extended than it needed to be for a direct answer to Senator Pell's question, we think HEW's reading is strained. We think this particularly in light of the fact that the discussion was an oral one and thus not as precise as a response in written form . . . ." 593 F.2d, at 427. 87 Rather than supporting the Court's view, the legislative history accords with the natural reading of the statute. Title IX prohibits discrimination only against beneficiaries of federally funded programs and activities, not all employment discrimination by recipients of federal funds. Title IX is modeled after Title VI, which is explicitly so limited—and to the extent statements of Senator Bayh can be read to the contrary, they are ambiguous.13 88 As indicated above, when critical words, in this case "employment discrimination," are absent from a statute and its meaning is otherwise clear, reliance on legislative history to add omitted words is rarely appropriate. Only when legislative history gives clear and unequivocal guidance as to congressional intent should a court presume to add what Congress failed to include. And, however else one might describe the legislative history relied upon by the Court today, it is neither clear nor unequivocal. III 89 As the sole issue before us is the meaning of § 901(a) of Title IX, I repeat the relevant language: 90 "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. . . ." 91 The Court acknowledges that, in view of the lack of support for its position in this language, it must look to the legislative history for evidence as to whether or not § 901 was meant to prohibit employment discrimination. Ante, at 522. Although the Court examines at length the truncated legislative history, it ignores other factors highly relevant to congressional intent: (i) whether the ambiguity easily could have been avoided by the legislative draftsman; (ii) whether Congress had prior experience and a certain amount of expertise in legislating with respect to this particular subject; and (iii) whether existing legislation clearly and adequately proscribed, and provided remedies for, the conduct in question. When these factors are considered, there is no justification for reading sex employment discrimination language into § 901. 92 If there had been such an intent, no competent legislative draftsman would have written § 901 as above set forth. The draftsman would have been guided, of course, by the employment-discrimination language in Title VII and the Equal Pay Act, language specifically addressing this problem. Moreover, although these other statutes had been enacted by an earlier Congress, at the time Title IX was being drafted and considered Title VII and the Equal Pay Act also were amended to proscribe explicitly employment discrimination in educational institutions on the basis of sex. Congress hardly would have enacted a third statute addressing this problem, but, in contrast to the other two, use language ambiguous at best. 93 In addition, a comparison of the provisions of Title VII and Title IX suggests that Congress would not have enacted the inconsistent provisions of the latter with respect to remedies and procedures. Title VII is a comprehensive antidiscrimination statute with carefully prescribed procedures for conciliation by the EEOC, federal-court remedies available within certain time limits, and certain specified forms of relief, designed to make whole the victims of illegal discrimination and available unless discriminatory conduct falls within one of several exceptions. See 42 U.S.C. § 2000e et seq. (1976 ed. and Supp.IV). This thoughtfully structured approach is in sharp contrast to Title IX, which contains only one extreme remedy, fund termination, apparently now available at the request of any female employee who can prove discrimination in employment in a federally funded program or activity. This cutoff of funds, at the expense of innocent beneficiaries of the funded program, will not remedy the injustice to the employee. Indeed, Title IX does not authorize a single action, such as employment, reemployment, or promotion, to rectify employment discrimination. And Title IX, unlike Title VII, has no time limits for action, no conciliation provisions, and no guidance as to procedure.14 Compare 20 U.S.C. § 1681 et seq. (Title IX) with 42 U.S.C. § 2000e et seq. (1976 ed. and Supp.IV) (Title VII). The Solicitor General conceded at oral argument that appropriate relief for the two employees who initiated this suit was available under Title VII.15 See Tr. of Oral Arg. 27. 94 Finally, Congress delegated the administration of Title IX to the Department of HEW. In contrast, Title VII and the Equal Pay Act are administered by the Department of Labor and EEOC. It is most unlikely that Congress would intend not only duplicate substantive legislation but also enforcement of these provisions by different departments of government with different enforcement powers, areas of expertise, and enforcement methods.16 The District Court in Romeo Community Schools v. HEW, 438 F.Supp. 1021 (E.D.Mich.1977), aff'd., 600 F.2d 581 (CA6), cert. denied, 444 U.S. 972, 100 S.Ct. 467, 62 L.Ed.2d 388 (1979), correctly observed: 95 "These governmental agencies, particularly the EEOC, were established specifically for the purpose of regulating discrimination in employment practices. These agencies have the expertise and their enabling legislation has provided them with the investigative and enforcement machinery necessary to compel compliance with regulations against sex discrimination in employment. HEW does not have similar enforcement authority." 438 F.Supp., at 1034. 96 Even the Solicitor General, in the brief on behalf of the federal respondents in this case, acknowledges what the Romeo court thought was self-evident: 97 "The Department of Education has only limited expertise in employment matters. Its view is that employment cases are better resolved under Title VII of the Civil Rights Act of 1964, which provides more appropriate remedies for such cases." Brief for Federal Respondents 37, n. 26. 98 In sum, the Court's decision today, finding an unarticulated intent on the part of Congress, is predicated on five perceptions of congressional action that I am unable to share: (i) that Congress neglectfully or forgetfully failed to include language in § 901 with respect to discrimination that would have made clear its intent; (ii) that Congress enacted a third statute proscribing sex discrimination in employment in educational institutions in the absence of any showing of a need for such duplicative legislation; (iii) that Congress failed to include in the third statute appropriate procedural and remedial provisions relevant to employment discrimination; (iv) that it vested the authority to enforce the third statute in HEW, a department that even the Solicitor General concedes lacks the experience and the qualifications to oversee and enforce employment legislation; and, (v) finally that in Title IX, it gave a new "remedy" for sex discrimination in employment, but did not make that remedy available to those discriminated against on the basis of race. 99 In response to this dissent, see ante, at 536, n. 26, the Court states that the factors considered in this Part III, summarized above, "are not relevant" to "ascertaining legislative intent." If this were a "plain language" case, this statement probably would be unobjectionable. But the Court recognizes that its position cannot be sustained solely by the plain language of the statute, and it therefore relies heavily on ambiguous and muddled oral statements made on the floor of the Senate. In these circumstances, it defies reason to say that a court should not consider what reasonable legislators surely would have considered. Where ambiguity exists it is not "irrelevant," to the process of ascertaining the intention of Congress, to consider specifically other statutes on the same subject. Nor must a court shun common sense in resolving ambiguities.17 1 Section 901(a)(1) provides that, with respect to admissions, § 901(a) applies only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education. Specific exceptions are made for the admissions policies of schools that begin admitting students of both sexes for the first time, § 901(a)(2); religious schools, § 901(a)(3); military schools, § 901(a)(4); the admissions policies of public institutions of undergraduate higher education that traditionally and continually have admitted students of only one gender, § 901(a)(5); social fraternities and sororities, and voluntary youth service organizations, § 901(a)(6); Boys/Girls State/Nation conferences, § 901(a)(7); father-son and mother-daughter activities at educational institutions, § 901(a)(8); and scholarships awarded in "beauty" pageants by institutions of higher education, § 901(a)(9). 2 Funding may not be terminated, however, until after the agency determines that noncompliance cannot be achieved by voluntary means; the recipient is given a hearing before an administrative law judge, who makes a recommendation subject to administrative and judicial review; and a report is filed with the appropriate House and Senate committees and no action is taken on that report for 30 days. See §§ 902, 903; 34 CFR §§ 106.71, 100.6-100.11, pt. 101 (1980). 3 Section 902 provides in full: "Each Federal department and agency which is empowered to extend Federal financial assistance to any education 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 901 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 program 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." 86 Stat. 374 (emphasis in original). 4 HEW's functions under Title IX were transferred in 1979 to the Department of Education by § 301(a)(3) of the Department of Education Organization Act, Pub.L. 96-88, 93 Stat. 678, 20 U.S.C. § 3441(a)(3) (1976 ed., Supp. IV). Because many of the relevant actions in this case were taken by HEW prior to reorganization, both agencies are referred to herein as HEW. 5 The regulations initially appeared at 34 CFR pt. 86 (1972), but were recodified in connection with the establishment of the Department of Education. 45 Fed.Reg. 30802 (1980). See n. 4, supra. 6 The Department of Agriculture also has issued regulations implementing Title IX. These include employment practices provisions that track the regulations at issue here. See 7 CFR §§ 15a.51-15a.61 (1980). In addition, the Small Business Administration has promulgated regulations prohibiting employment discrimination, which are based in part on Title IX. See 13 CFR § 113.3 (1981). See generally Comment, 129 U.Pa.L.Rev. 417, 418, nn. 7 and 8 (1980). 7 See North Haven Bd. of Ed. v. Hufstedler, 629 F.2d 773, 774-775 (CA2 1980). 8 Because the court awarded summary judgment in petitioner's favor before respondent Potz had an opportunity to reply to Trumbull's motion, Potz filed a motion to set aside the judgment and a cross-motion for summary judgment. On September 13, 1979, the court denied both motions, rejecting Potz' contention that the judgment was inconsistent with this Court's opinion in Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). App. to Pet. for Cert. 77A. 9 Four Courts of Appeals and several District Courts have so held. See Seattle University v. HEW, 621 F.2d 992 (CA9), cert. granted sub nom. United States Dept. of Ed. v. Seattle Univ., 449 U.S. 1009, 101 S.Ct. 563, 66 L.Ed.2d 467 (1980); Romeo Community Schools v. HEW, 600 F.2d 581 (CA6), cert. denied, 444 U.S. 972, 100 S.Ct. 467, 62 L.Ed.2d 388 (1979); Junior College Dist. of St. Louis v. Califano, 597 F.2d 119 (CA8), cert. denied, 444 U.S. 972, 100 S.Ct. 467, 62 L.Ed.2d 388 (1979); Islesboro School Comm. v. Califano, 593 F.2d 424 (CA1), cert. denied, 444 U.S. 972, 100 S.Ct. 467, 62 L.Ed.2d 387 (1979); Grove City College v. Harris, 500 F.Supp. 253 (WD Pa.1980), appeal pending, Nos. 80-2383, 80-2384 (CA3); Kneeland v. Bloom Township High School Dist., 484 F.Supp. 1280 (ND Ill.1980); McCarthy v. Burkholder, 448 F.Supp. 41 (Kan.1978). But see Piascik v. Cleveland Museum of Art, 426 F.Supp. 779, 781, n. 1 (ND Ohio 1976). Cf. Dougherty Cty. School System v. Harris, 622 F.2d 735 (CA5 1980), cert. pending sub nom. Bell v. Dougherty Cty. School System, No. 80-1023. The Fifth Circuit invalidated the Subpart E regulations on the ground that they do not apply only to specific programs that receive federal financial assistance, but ruled that Title IX permits the Secretary to regulate at least some employment practices. 10 According to the dissent, the ease with which any confusion "could have been avoided by the legislative draftsman . . ." suggests that "person" should be given its ordinary meaning. Post, at 551. 11 Nor does § 901(b) qualify the broad language of § 901(a). Section 901(b) repeats the language identifying certain of the categories of persons listed in § 901(a); it provides no clearer indication of the intended scope of § 901(a) than does that section itself. 12 In construing a statute, this Court normally accords great deference to the interpretation, particularly when it is longstanding, of the agency charged with the statute's administration. See, e.g., NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-275, 94 S.Ct. 1757, 1761-1762, 40 L.Ed.2d 134 (1974); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969). But the administrative interpretation of Title IX has changed, and a split has occurred between the federal agencies responsible for promulgating Title IX regulations. On July 27, 1981, respondent Bell, Secretary of Education, wrote to the Attorney General expressing his dissatisfaction with the existing Subpart E regulations and his belief that they were ultra vires. The Secretary sought to amend the regulations to make them parallel with the Department of Education regulations implementing Title VI of the Civil Rights Act of 1964. See 34 CFR pt. 100 (1980). Specifically, Secretary Bell proposed to have the regulations cover employment practices "only when the complaint shows a clear nexus between the alleged employment discrimination and discrimination against the students, or when the complaint shows that the complainant is a beneficiary of a program in which a primary objective of the Federal financial assistance is to provide employment." Letter from Terrel H. Bell to William French Smith, reprinted in Daily Labor Report, No. 150, p. A-5 (Aug. 5, 1981). Cf. 34 CFR § 100.3(c) (1980). In response, the Attorney General, to whom the President has delegated the authority given him by § 902 to approve regulations promulgated pursuant to Title IX, refused to approve the Department's suggestion and continues to defend the existing regulations. See Brief for Federal Respondents 37, n. 26; Tr. of Oral Arg. 18-19. The Department of Education has withdrawn its request to the Attorney General pending this Court's decision in this case. See id., at 17-18. Because the Subpart E regulations therefore are still in effect, respondent Bell's changed view does not moot the litigation. See American Textile Mfrs. Institute, Inc. v. Donovan, 452 U.S. 490, 505, n. 25, 101 S.Ct. 2478, 2488, n. 25, 69 L.Ed.2d 185 (1981). It, however, does undercut the argument that the regulations are entitled to deference as the interpretation of the agency charged with Title IX's enforcement. See Southeastern Community College v. Davis, 442 U.S. 397, 412, n. 11, 99 S.Ct. 2361, 2370, n. 11, 60 L.Ed.2d 980 (1979). 13 Title IX grew out of hearings on gender discrimination in education, held in 1970 by a special House Subcommittee on Education chaired by Representative Green. See Discrimination Against Women: Hearings on Section 805 of H.R. 16098 before the Special Subcommittee on Education of the House Committee on Education and Labor, 91st Cong., 2d Sess. (1970) (1970 Hearings). Much of the testimony focused on discrimination against women in employment. See generally, e.g., Kuhn, Title IX: Employment and Athletics Are Outside HEW's Jurisdiction, 65 Geo.L.J. 49, 59-60 (1976); Comment, 1976 B.Y.U.L.Rev. 133, 140-141. The proposal on which the hearings were held, however, never emerged from committee. That provision, § 805 of H.R. 16098, would have extended the prohibitions of Title VI of the Civil Rights Act of 1964 to discrimination based on gender by adding the word "sex" to § 601; would have made Title VII of the Civil Rights Act of 1964 applicable to public school employees and education employees generally; would have amended the Civil Rights Act of 1957 to include gender discrimination within the jurisdiction of the Civil Rights Commission; and would have extended the application of the Equal Pay Act to executive, administrative, and professional employees. Then, in 1971, Senator Bayh introduced an amendment to S. 659, 92d Cong., 1st Sess. (1971), the Education Amendments of 1971, which would have prohibited recipients of federal education funds from discriminating against women. The amendment, which Senator Bayh characterized as identical to the prohibition against discrimination on the basis of race contained in Title VI of the Civil Rights Act of 1964, plainly was meant to proscribe discrimination in employment. See 117 Cong.Rec. 30155, 30403 (1971); see also id., at 30411 (Sen. McGovern announces his intent to support Sen. Bayh's "similar amendment" rather than introducing his own, which explicitly forbade gender discrimination in employment). The amendment never came to a vote on the floor of the Senate, however, because it was ruled nongermane. See id., at 30415. 14 Senator Bayh's 1971 proposal, see n. 13, supra, did not include provisions amending Title VII and the Equal Pay Act. His statements that the 1971 amendment nevertheless would prohibit employment discrimination thus rebut petitioners' contention that the Senator's discussion of employment discrimination during debate on the 1972 version of his amendment referred solely to the provisions regarding Title VII and the Equal Pay Act. 15 The headings and corresponding divisions of Senator Bayh's summary of his amendment do suggest, however, that the Senator's reference to "sections 1001-1005" in describing the prohibition of discrimination in federally funded education programs is of little significance. Although, as the dissent points out, post, at 548, § 1005 of the amendment comprised the Title VII provisions, the detailed discussion of the Title VII amendments in part B of the summary, the absence of any further mention of those provisions in part A's description of Title IX, and the fact that the Title VII provisions were not limited to "federally funded education programs" indicate that the Senator's reference to § 1005 in part A was inadvertent. 16 Moreover, in reply to Senator Pell's questions regarding Title IX's application to the faculty of religious and military schools, Senator Bayh made clear that such institutions were explicitly excepted from the reach of § 901(a). See 118 Cong.Rec. 5813 (1972). His response makes no sense if Senator Bayh thought that the provision was not aimed at protecting any employees; in that event, he could have answered Senator Pell's questions simply by stating that employment discrimination was dealt with in the Title VII and Equal Pay Act portions of the amendment, rather than in § 901. 17 Portions of that debate suggest, however, that, despite § 1004, Members of the House thought that the ban on discrimination protected employees. In discussing a proposed amendment to § 1001 of the bill, the section similar to § 901(a) of Title IX, Representative Smith quoted § 1001, described it as containing the "effective provisions" of Title X, and observed that the amendment "would exempt out of this title all undergraduate schools and would leave the prohibition against sex discrimination to apply to graduate education and faculty employment and salaries." 117 Cong.Rec. 39255 (1971); see also id., at 39260 (remarks of Rep. Erlenborn); id., at 39262 (remarks of Rep. Quie). Despite the explicit exclusion of employment discrimination in § 1004, then, there was at least some feeling on the floor of the House that employment discrimination was nonetheless prohibited by the provision that would become § 901(a). 18 The proposed amendments to Title VII had been deleted because identical provisions had already been enacted as part of the Equal Employment Opportunity Act of 1972, Pub.L. 92-261, 86 Stat. 103, 42 U.S.C. § 2000e(a). 19 The Court of Appeals suggested the following language: " 'Nothing in § 901 shall apply to any employees of any educational institution subject to this title except where a primary objective of the Federal financial assistance is to provide employment.' " 629 F.2d, at 783. 20 Petitioners oversimplify the role of § 604. Some Members of Congress did not find the language of § 601 clearly limited to a certain class of beneficiaries. See 110 Cong.Rec. 2484 (1964) (remarks of Rep. Poff); Civil Rights: Hearings on H.R. 7152 before the House Committee on Rules, 88th Cong., 2d Sess., 228 (1964) (colloquy between Rep. Avery and Rep. McCulloch); id., at 143 (remarks of Rep. Celler); id., at 197-198 (Colloquy between Rep. Avery and Rep. Celler); id., at 379-380 (remarks of Rep. Poff). Section 604 was thereafter added in the Senate, as part of the Dirksen-Mansfield substitute bill; although the provision has been viewed as merely clarifying the scope of Title VI, see 110 Cong.Rec. 12714, 12720 (1964) (remarks of Sen. Humphrey); Kuhn, 65 Geo.L.J., at 53, it has also been considered a substantive change, see 110 Cong.Rec. 14219-14220 (1964) (remarks of Sen. Holland); Comment, 129 U.Pa.L.Rev., at 447 ("The employment exemption in title VI was amended onto the statute as part of a substitute written during informal bargaining between the Senate's Democratic and Republican leadership with the intention of providing a compromise that would garner enough votes to end the ongoing filibuster"). 21 Thus, we do not, as the dissent charges, "rel[y] on legislative history to add omitted words . . . ." Post, at 550. Rather, we use the legislative history as a guide to interpreting the "critical words" that Congress did include in Title IX. Ibid. It is the dissent that uses the legislative history—of a different statute—to rewrite Title IX so as to restrict its reach. 22 Senator Laxalt introduced a resolution disapproving the regulations governing athletic programs. S.Con.Res. 52, 94th Cong., 1st Sess. (1975); see 121 Cong.Rec. 22940 (1975). Senator Helms' resolution was a blanket disapproval of the HEW regulations, S.Con.Res. 46, 94th Cong., 1st Sess. (1975); see 121 Cong.Rec. 17300 (1975), but he did voice disapproval specifically of the employment regulations when he introduced the resolution. Id., at 17301. Senator Helms later explained that the Committee on Labor and Public Welfare had met in executive session on his resolution but had decided not to report it to the full Senate. Id., at 23846. 23 Senator Bayh also stressed the similarity between Title IX and Title VI, see 1975 Hearings 169-171, thereby confirming that his references to Title VI during the debate on his amendment did not indicate an intent that employment discrimination be excluded from its coverage. 24 H.R.Con.Res. 330 was referred to the House Committee on Education and Labor, which in turn submitted it to its Subcommittee on Equal Opportunities. That Subcommittee held a one-day hearing on the resolution, see Hearing on House Concurrent Resolution 330 (Title IX Regulation) before the Subcommittee on Equal Opportunities of the House Committee on Education and Labor, 94th Cong., 1st Sess. (1975) (H.R.Con.Res. 330 Hearing), and then voted to recommend against passage of the resolution. Interestingly, Representative O'Hara testified at this hearing, but, despite his remarks during the hearings conducted by his own Subcommittee, see 1975 Hearings 408-409, he did not challenge the employment regulations. See H.R.Con.Res. 330 Hearing 2-21, 33-34, 38. In addition to the two concurrent resolutions mentioned in the text, Representative Martin introduced two resolutions in the House—one broad resolution disapproving all the Title IX regulations, H.R.Con.Res. 310, 94th Cong., 1st Sess. (1975); see 121 Cong.Rec. 19209 (1975), and one focusing on the sections governing athletic programs, H.R.Con.Res. 311, 94th Cong., 1st Sess. (1975); see 121 Cong.Rec. 19209 (1975). Neither referred to the employment regulations. No action was taken on the Martin resolutions. 25 In 1974, Congress, by adding § 901(a)(6), excepted social fraternities and sororities and voluntary youth service organizations from the reach of § 901(a). Pub.L. 93-568, § 3(a), 88 Stat. 1862. See 120 Cong.Rec. 41390-41391 (1974) (remarks of Reps. Green, Steiger, Perkins, Quie, and Ashbrook). The amendment was enacted prior to the period of regulations review, but after HEW had published for comment the Title IX regulations, including those pertaining to employment practices. Then, in 1976, Congress added three new exceptions, §§ 901(a)(7)-(9). See 122 Cong.Rec. 27979-27987 (1976) (remarks of Sens. Fannin, Dole, Thurmond, Bayh, Humphrey, and Eagleton). 26 Petitioners' final two arguments rely on policy judgments: the school boards insist that the victims of employment discrimination have remedies other than those available under Title IX and that terminating all federal funds to an education program because of discrimination suffered by one employee will injure numerous innocent students. These policy considerations were for Congress to weigh, and we are not free to ignore the language and history of Title IX even were we to disagree with the legislative choice. Moreover, even if alternative remedies are available and their existence is relevant, but cf. Cannon v. University of Chicago, 441 U.S., at 711, 99 S.Ct., at 1965; Comment, 129 U.Pa.L.Rev., at 442-446, this Court repeatedly has recognized that Congress has provided a variety of remedies, at times overlapping, to eradicate employment discrimination. See, e.g., Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 236-239, 97 S.Ct. 441, 446-448, 50 L.Ed.2d 427 (1976); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459, 95 S.Ct. 1716, 1719, 44 L.Ed.2d 295 (1975); Alexander v. Gardner-Denver Co., 415 U.S. 36, 47-49, 94 S.Ct. 1011, 1019-1020, 39 L.Ed.2d 147 (1974). And petitioners do not dispute that all funds may be terminated for an education program that discriminates against only one student. Similarly, the views of the dissent as to the competence of the drafters of Title IX, the need for the legislation, the type of procedural, remedial, and enforcement provisions that should have been included, and the language that should have been used, see post, at 551-555, may be interesting, and may be the sorts of considerations that Congress should take into account in enacting legislation; but they are not relevant to the inquiry we must undertake in ascertaining legislative intent. Rather, in order to avoid the oft-criticized practice of second-guessing Congress, we must rely on the legislative history, however "truncated," post, at 551, and not on our perceptions of the soundness of the legislative judgment. 27 To the extent that the Court of Appeals was suggesting only that regulations may be broadly worded and need not be directed at specific programs—as long as they are applied only to programs that receive federal funds—we do not dispute the court's conclusion. See § 902 (referring to "rules, regulations, or orders of general applicability"). 28 Similarly, for example, the specific Title IX regulations governing student admissions policies—which are indisputably covered by the statute—are phrased generally, providing that "[n]o person shall, on the basis of sex, be denied admission, or be subjected to discrimination in admission, by any recipient . . . ." 34 CFR § 106.21(a) (1980). The reach of those regulations is likewise limited by § 106.1 to conform to Title IX's program-specific nature. See also 45 CFR § 80.3(b)(1) (1980) (Title VI regulation providing that "[a] recipient under any program to which this part applies may not . . . [discriminate] on ground of race, color, or national origin . . ."). 29 In construing regulations, the Court normally defers to the agency's interpretation. See, e.g., INS v. Stanisic, 395 U.S. 62, 72, 89 S.Ct. 1519, 1525, 23 L.Ed.2d 101 (1969); Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). Here, however, that interpretation has fluctuated from case to case, and even as this case has progressed. See Brief for Federal Respondents 46; compare 1975 Hearings 485 (testimony of HEW Secretary Weinberger), and Dougherty Cty. School System v. Harris, 622 F.2d, at 737, with Brief for Federal Respondents 44-46. Accordingly, there is no consistent administrative interpretation of the Title IX regulations for us to evaluate. Cf. n. 12, supra. 30 Whether "it" refers to "recipient" or "education program or activity" is somewhat unclear, but we find the latter reading more plausible, especially given the approving citation to the Fifth Circuit's opinion in Board of Public Instruction of Taylor County, Florida v. Finch, 414 F.2d 1068 (1969). Moreover, "a recipient of Federal financial assistance" by definition "receives or benefits from such assistance," whereas "an education program or activity . . . operated by a recipient" may not; the subordinate clause therefore adds nothing unless "it" means "program or activity." See also 34 CFR § 106.51(a) (1980) (prohibiting gender discrimination "under any education program or activity operated by a recipient which receives or benefits from Federal financial assistance" (emphasis added)). 31 Petitioner North Haven, for example, has conceded that it uses a substantial percentage of its federal funds to pay the salaries of its employees, including teachers. See App. 6, 18-20, 21-22, 24. 1 As noted by the Court, ante, at 516, n. 4, HEW's duties under Title IX were transferred to the Department of Education in 1979 by § 301(a)(3) of the Department of Education Organization Act, Pub.L. 96-88, 93 Stat. 678, 20 U.S.C. § 3441(a)(3) (1976 ed., Supp. IV). I follow the Court in referring to both agencies as HEW since many of the relevant acts in this case took place before the reorganization. See ante, at 516, n. 4. 2 The Court acknowledges that the postenactment events it discusses only "lend credence" to its interpretation of the statute. Ante, at 535. 3 I agree with the Court that employees who directly participate in a federal program, i.e., teachers who receive federal grants, are, of course, protected by Title IX. See ante, at 520-521. Respondents Elaine Dove and Linda Potz were not, however, participants in any grant program or in any other federally funded program or activity. Elaine Dove was a teacher and Linda Potz a guidance counselor. Both alleged only discrimination in employment. 4 See, e.g., 42 U.S.C. § 2000e-2(a) (Title VII: "[i]t shall be an unlawful employment practice for an employer—"); 29 U.S.C. § 206(d)(1) (Equal Pay Act: "[n]o employer having employees. . ."). 5 The Court today not only finds this point unconvincing, but concludes that the "absence of a specific exclusion for employment among the list of exceptions tends to support the Court of Appeals' conclusion" that Title IX does protect employees. Ante, at 521-522. I am unable to follow this reasoning. The absence of employment-related exceptions may not be conclusive proof that employment is not within the scope of the statute. But I fail to see how that absence affirmatively indicates that the statute was intended to apply to employees. Indeed, if Congress did intend to cover employees, it is anomalous that it did not provide exceptions similar to those in Title VII. For example, Title VII does not proscribe bona fide seniority plans, 42 U.S.C. § 2000e-2(h). 6 The question also has been presented to the Courts of Appeals for the Fifth, Eighth, and Ninth Circuits. In Junior College Dist. of St. Louis v. Califano, 597 F.2d 119, 121, cert. denied, 444 U.S. 972, 100 S.Ct. 467, 62 L.Ed.2d 388 (1979), the Court of Appeals for the Eighth Circuit considered HEW's arguments but "adopted" the Court of Appeals for the First Circuit's decision in Islesboro. And in Seattle University v. HEW, 621 F.2d 992, 993, cert. granted sub nom. United States Dept. of Ed. v. Seattle Univ., 449 U.S. 1009, 101 S.Ct. 563, 66 L.Ed.2d 467 (1980), the Court of Appeals for the Ninth Circuit followed the three earlier Circuit decisions, noting that each of those courts had held that the plain language of Title IX did not support HEW's position. Even in the decision below, in which the Court of Appeals for the Second Circuit upheld the regulations, the court did not base its decision on the statutory language, and stated that the "language is more ambiguous than HEW suggests." 629 F.2d 773, 777. The other appellate decision was entered by the Court of Appeals for the Fifth Circuit in Dougherty Cty. School System v. Harris, 622 F.2d 735 (1980), cert. pending sub nom. Bell v. Dougherty Cty. School System, No. 80-1023. There, the Court of Appeals for the Fifth Circuit held the regulations invalid because they did not limit fund termination to the offending program or activity. In reaching this decision, the court noted that program-specific regulations might be sustainable in some instances, e.g., if they prohibited discrimination in pay against female teachers paid with federal funds relative to the amounts paid male teachers with federal funds. The court noted that an argument can be made that in such a case, the woman teacher is "denied the benefits of" or "subject to discrimination under" the federal program. 622 F.2d, at 737-738. But there is no indication it would agree with this Court that the statutory language supports program-specific regulations prohibiting all kinds of discriminatory employment practices with respect to all types of employees, i.e., hourly employees, secretaries, and administrators as well as teachers. 7 See, e.g., Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 412, n. 29, 91 S.Ct. 814, 821, n. 29, 28 L.Ed.2d 136 (1971) ("Because of this ambiguity [in the legislative history] it is clear that we must look primarily to the statutes themselves to find the legislative intent"). 8 The operative language in the two provisions is virtually identical. Compare 42 U.S.C. § 2000d (Title VI) with 20 U.S.C. § 1681(a) (Title IX). 9 Title 42 U.S.C. § 2000d-3 states: "Nothing contained in this subchapter shall be construed to authorize action under this subchapter by any department or agency with respect to any employment practice of any employer, employment agency or labor organization except where a primary objective of the Federal financial assistance is to provide employment." 10 See, e.g., 110 Cong.Rec. 10076 (1964) (statement of Attorney General Kennedy); Civil Rights: Hearings on H.R. 7152 before the House Committee on Rules, 88th Cong., 2d Sess., 198 (1964) (statement of Cong. Celler, House Floor Manager of Title VI). 11 The most dependable sources of legislative intent are the reports of the responsible committees. Because Title IX is the result of a floor amendment, there is no explanation of its meaning in reports from the relevant House and Senate Committees. 12 See description of various sections of the Bayh amendment, supra, at 545. See also 118 Cong.Rec. 5803 (1972) (print of amendment). The Court argues against the relevance of the portion of Senator Bayh's statement that is inconsistent with its position, characterizing that portion as "inadvertent." See ante, at 526, n. 15. This hardly gives one confidence that the Senator's statements, selectively relied upon by the Court, are not also inadvertent. Moreover, the Court's decision concededly is based solely on discussion on the floor of the Senate. We note—as evidence of how little that discussion actually supports the Court that the views of Courts of Appeals judges with respect to its import have ranged from viewing it as indicating no intention to include employment discrimination in Title IX to recognizing that, like most floor debates, the oral statements of Senators must be viewed with skepticism even when not ambiguous. See Seattle University v. HEW, 621 F.2d, at 995; Romeo Community Schools v. HEW, 600 F.2d 581, 585 (CA6), cert. denied, 444 U.S. 972, 100 S.Ct. 467, 62 L.Ed.2d 388 (1979); Islesboro School Committee v. Califano, 593 F.2d 424, 428 (CA1), cert. denied, 444 U.S. 972, 100 S.Ct. 467, 62 L.Ed.2d 387 (1979). 13 The Court devotes considerable time to describing postenactment actions or inaction on the part of subsequent Congresses. See ante, at 530-535. The fact that, in 1975, Congress considered, but failed to enact, resolutions disapproving HEW's regulations is essentially irrelevant in determining the intent of the enacting Congress in 1972. Similarly, the fact that a subsequent Congress considered, but failed to enact, bills limiting Title IX's coverage with respect to employment discrimination does not indicate that the 1972 Congress meant to include employment discrimination within Title IX. 14 It is interesting to note that, whereas Congress itself provided for administrative procedures to redress employment discrimination in Title VII, see 42 U.S.C. § 2000e et seq. (1976 ed. and Supp.IV), it enacted no comparable provisions in Title IX, see 20 U.S.C. § 1681 et seq. Such administrative procedures as are available under Title IX are part of the regulations promulgated by HEW, 45 CFR §§ 80.7-80.10 (1980). The administrative procedures enacted by Congress in the United States Code and promulgated by HEW in the Code of Federal Regulations are quite different, though addressing a single problem. The HEW regulations provide for Administrative Procedure Act hearings, followed by judicial review. See 45 CFR §§ 80.9-80.11 (1980). In contrast, EEOC acts first as conciliator, attempting to settle employment disputes, and then, if it so desires, as counsel for the victims of discrimination in subsequent de novo judicial proceedings. See 42 U.S.C. § 2000e et seq. (1976 ed. and Supp.IV). 15 An employee could presumably bring actions against the school district under Title VII and the Equal Pay Act, seeking redress of his or her wrong in the form of backpay and injunctive relief, and, in addition, request that funds be terminated under Title IX. 16 The Court's decision will result in needless duplication of governmental bureaucracy. Although HEW would prefer to have no involvement in employment discrimination, see Brief for Federal Respondents 37, n. 26, it will be required to maintain a staff of employees to enforce the antidiscrimination in employment portion of Title IX. And these employees will duplicate the large staffs of the EEOC and the Department of Labor already devoted to employment discrimination. From the viewpoint of educational institutions, there will now be two sets of federal regulations and regulators overseeing their employment practices. These different governmental departments may, or may not, have the same substantive standards and filing requirements at any given time. At the present time, the HEW and EEOC procedures in the event of noncompliance are quite different. See discussion in text supra, at 552. 17 See, e.g., Buckley v. Valeo, 424 U.S. 1, 77, 96 S.Ct. 612, 662, 46 L.Ed.2d 659 (1976) (when statute is ambiguous, Court must "draw upon 'those common-sense assumptions that must be made in determining direction without a compass' ") (citation omitted); Fairport R. Co. v. Meredith, 292 U.S. 589, 595, 54 S.Ct. 826, 828, 78 L.Ed. 1446 (1934) (the interpretation that a reasonable Congress would have intended is adopted by the Court); 2A C. Sands, Sutherland on Statutory Construction § 456.12, p. 38 (4th ed. 1973) (legislative bodies presumed to act reasonably). See also Kokoszka v. Belford, 417 U.S. 642, 650, 94 S.Ct. 2431, 2436, 41 L.Ed.2d 374 (1974) ("When 'interpreting a statute, the court will look not merely to a particular clause in which general words may be used, but will take in connection with it the whole statute (or statutes on the same subject) and the objects and policy of the law . . .' ").

12

456 U.S. 461 102 S.Ct. 1883 72 L.Ed.2d 262 Rubin KREMER, Petitionerv.CHEMICAL CONSTRUCTION CORPORATION. No. 80-6045. Argued Dec. 7, 1981. Decided May 17, 1982. Leave to File Petition for Rehearing Denied Sept. 9, 1982. See 458 U.S. 1133, 103 S.Ct. 20. Syllabus by the Court Title 28 U.S.C. § 1738 (as did its predecessors dating back to 1790) requires federal courts to afford the same full faith and credit to state court judgments that would apply in the State's own courts. Petitioner filed an employment discrimination charge with the Equal Employment Opportunity Commission (EEOC) under Title VII of the Civil Rights Act of 1964, and the EEOC, as required by the Act, referred the charge to the New York State Division of Human Rights (NYHRD), the agency charged with enforcing the New York law prohibiting employment discrimination. The NYHRD rejected the claim as meritless and was upheld on administrative appeal. The Appellate Division of the New York Supreme Court affirmed. Subsequently, a District Director of the EEOC ruled that there was no reasonable cause to believe that the discrimination charge was true and issued a right-to-sue letter. Petitioner then brought a Title VII action in Federal District Court. Ultimately, the District Court dismissed the complaint on res judicata grounds, and the Court of Appeals affirmed. Held : The District Court was required under 28 U.S.C. § 1738 to give preclusive effect to the state court decision upholding the state administrative agency's rejection of the employment discrimination claim. Pp. 466-485. (a) Where under New York law the New York court's determination precludes petitioner from bringing any other action based on the same grievance in the New York courts, § 1738, by its terms, precludes him from relitigating the same question in federal courts. Pp. 466-467. (b) There is no "affirmative showing" of a "clear and manifest" legislative purpose in Title VII to deny res judicata or collateral estoppel effect to a state court judgment affirming that an employment discrimination claim is unproved. An exception to § 1738 will not be recognized unless a later statute contains an express or implied partial repeal. Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308. Here, there is no claim that Title VII expressly repealed § 1738, and no implied repeal is evident from the language, operation, or legislative history of Title VII, there being no manifest incompatibility between Title VII and § 1738. Pp. 468-476. (c) While initial resort to state administrative remedies does not deprive an individual of a right to a federal trial de novo on a Title VII claim, this does not mean that a prior state court judgment can be disregarded. Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147, distinguished. The comity and federalism interests embodied in § 1738 are not compromised by the application of res judicata and collateral estoppel in Title VII cases. Rather, to deprive state judgments of finality not only would violate basic tenets of comity and federalism but also would reduce the incentive for States to work toward effective and meaningful systems prohibiting employment discrimination. Pp. 476-478. (d) The procedures provided in New York for the determination of employment discrimination claims, complemented by administrative as well as judicial review, offer a full and fair opportunity to litigate the merits and thus are sufficient under the Due Process Clause of the Fourteenth Amendment. State proceedings need do no more than satisfy the minimum procedural requirements of the Due Process Clause in order to qualify for the full faith and credit guaranteed by federal law. Section 1738 does not allow federal courts to employ their own rules of res judicata in determining the effect of state judgments, but rather goes beyond the common law and commands a federal court to accept the rules chosen by the State from which the judgment is taken. Here, petitioner received all the process that was constitutionally required in rejecting his employment discrimination claim. Pp. 479-485. 623 F.2d 786 (2nd Cir.), affirmed. David A. Barrett, New York City, for petitioner. Lawrence G. Wallace, Washington, D. C., for the U. S. and E. E. O. C. as amici curiae, by special leave of Court. Robert Layton, New York City, for respondent. Justice WHITE delivered the opinion of the Court. 1 As one of its first acts, Congress directed that all United States courts afford the same full faith and credit to state court judgments that would apply in the State's own courts. Act of May 26, 1790, ch. 11, 1 Stat. 122, 28 U.S.C. § 1738. More recently, Congress implemented the national policy against employment discrimination by creating an array of substantive protections and remedies which generally allows federal courts to determine the merits of a discrimination claim. Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. (1976 ed. and Supp.IV). The principal question presented by this case is whether Congress intended Title VII to supersede the principles of comity and repose embodied in § 1738. Specifically, we decide whether a federal court in a Title VII case should give preclusive effect to a decision of a state court upholding a state administrative agency's rejection of an employment discrimination claim as meritless when the state court's decision would be res judicata in the State's own courts. 2 * Petitioner Rubin Kremer emigrated from Poland in 1970 and was hired in 1973 by respondent Chemical Construction Corp. (Chemico) as an engineer. Two years later he was laid off, along with a number of other employees. Some of these employees were later rehired, but Kremer was not although he made several applications. In May 1976, Kremer filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC), asserting that his discharge and failure to be rehired were due to his national origin and Jewish faith. Because the EEOC may not consider a claim until a state agency having jurisdiction over employment discrimination complaints has had at least 60 days to resolve the matter, § 706(c), 42 U.S.C. § 2000e-5(c),1 the Commission referred Kremer's charge to the New York State Division of Human Rights (NYHRD), the agency charged with enforcing the New York law prohibiting employment discrimination. N.Y.Exec.Law §§ 295(6), 296(1)(a) (McKinney 1972 and Supp.1981-1982). 3 After investigating Kremer's complaint,2 the NYHRD concluded that there was no probable cause to believe that Chemico had engaged in the discriminatory practices complained of. The NYHRD explicitly based its determination on the findings that Kremer was not rehired because one employee who was rehired had greater seniority, that another employee who was rehired filled a lesser position than that previously held by Kremer, and that neither Kremer's creed nor age was a factor considered in Chemico's failure to rehire him. The NYHRD's determination was upheld by its Appeal Board as "not arbitrary, capricious or an abuse of discretion." Kremer again brought his complaint to the attention of the EEOC and also filed, on December 6, 1977, a petition with the Appellate Division of the New York Supreme Court to set aside the adverse administrative determination. On February 27, 1978, five justices of the Appellate Division unanimously affirmed the Appeal Board's order. Kremer could have sought, but did not seek, review by the New York Court of Appeals. 4 Subsequently, a District Director of the EEOC ruled that there was no reasonable cause to believe that the charge of discrimination was true and issued a right-to-sue notice.3 The District Director refused a request for reconsideration, noting that he had reviewed the case files and considered the EEOC's disposition as "appropriate and correct in all respects." 5 Kremer then brought this Title VII action in District Court, claiming discrimination on the basis of national origin and religion.4 Chemico argued from the outset that Kremer's Title VII action was barred by the doctrine of res judicata. The District Court initially denied Chemico's motion to dismiss. 464 F.Supp. 468 (SDNY 1978). The court noted that the Court of Appeals for the Second Circuit had recently found such state determinations res judicata in an action under 42 U.S.C. § 1981, Mitchell v. National Broadcasting Co., 553 F.2d 265 (1977), but distinguished Title VII cases because of the statutory grant of de novo federal review. Several months later the Second Circuit extended the Mitchell rule to Title VII cases. Sinicropi v. Nassau County, 601 F.2d 60 (per curiam), cert. denied, 444 U.S. 983, 100 S.Ct. 488, 62 L.Ed.2d 411 (1979). The District Court then dismissed the complaint on grounds of res judicata. 477 F.Supp. 587 (SDNY 1979). The Court of Appeals refused to depart from the Sinicropi precedent and rejected petitioner's claim that Sinicropi should not be applied retroactively. 623 F.2d 786 (1980). 6 A motion for rehearing en banc was denied, and petitioner filed for a writ of certiorari. We issued the writ, 452 U.S. 960, 101 S.Ct. 3107, 69 L.Ed.2d 970 (1981), to resolve this important issue of federal employment discrimination law over which the Courts of Appeals are divided.5 We now affirm. II 7 Section 1738 requires federal courts to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged.6 Here the Appellate Division of the New York Supreme Court has issued a judgment affirming the decision of the NYHRD Appeals Board that the discharge and failure to rehire Kremer were not the product of the discrimination that he had alleged. There is no question that this judicial determination precludes Kremer from bringing "any other action, civil or criminal, based upon the same grievance" in the New York courts. N.Y.Exec.Law § 300 (McKinney 1972). By its terms, therefore, § 1738 would appear to preclude Kremer from relitigating the same question in federal court. 8 Kremer offers two principal reasons why § 1738 does not bar this action. First, he suggests that in Title VII cases Congress intended that federal courts be relieved of their usual obligation to grant finality to state court decisions. Second, he urges that the New York administrative and judicial proceedings in this case were so deficient that they are not entitled to preclusive effect in federal courts and, in any event, the rejection of a state employment discrimination claim cannot by definition bar a Title VII action. We consider this latter contention in Part III. A. 9 Allen v. McCurry, 449 U.S. 90, 99, 101 S.Ct. 411, 417, 66 L.Ed.2d 308 (1980), made clear that an exception to § 1738 will not be recognized unless a later statute contains an express or implied partial repeal. There is no claim here that Title VII expressly repealed § 1738; if there has been a partial repeal, it must be implied. "It is, of course, a cardinal principle of statutory construction that repeals by implication are not favored," Radzanower v. Touche Ross & Co., 426 U.S. 148, 154, 96 S.Ct. 1989, 1993, 48 L.Ed.2d 540 (1976); United States v. United Continental Tuna Corp., 425 U.S. 164, 168, 96 S.Ct. 1319, 1322, 47 L.Ed.2d 653 (1976), and whenever possible, statutes should be read consistently. There are, however, 10 " 'two well-settled categories of repeals by implication—(1) where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act. But, in either case, the intention of the legislature to repeal must be clear and manifest. . . .' " Radzanower v. Touche Ross & Co. supra, at 154, 96 S.Ct., at 1993, quoting Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351 (1936). 11 The relationship of Title VII to § 1738 does not fall within either of these categories. Congress enacted Title VII to assure equality of employment opportunities without distinction with respect to race, color, religion, sex, or national origin. Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973). To this end the EEOC was created and the federal courts were entrusted with ultimate enforcement responsibility. State antidiscrimination laws, however, play an integral role in the congressional scheme. Whenever an incident of alleged employment discrimination occurs in a State or locality which by law prohibits such discrimination and which has established an "authority to grant or seek relief from such [discrimination] or to institute criminal proceedings with respect thereto," no charge of discrimination may be actively processed by the EEOC until the state remedy has been invoked and at least 60 days have passed, or the state proceedings have terminated. § 706(c), 42 U.S.C. § 2000e-5(c). Only after providing the appropriate state agency an opportunity to resolve the complaint may an aggrieved individual press his complaint before the EEOC. In its investigation to determine whether there is reasonable cause to believe that the charge of employment discrimination is true, the Commission is required to "accord substantial weight to final findings and orders made by State and local authorities in proceedings commenced under State or local law" pursuant to the limited deferral provisions of § 706, but is not bound by such findings. Alexander v. Gardner-Denver Co., supra, at 48, n.8, 94 S.Ct., at 1019, n.8. If the EEOC finds reasonable cause to believe that discrimination has occurred, it undertakes conciliation efforts to eliminate the unlawful practice; if these efforts fail, the Commission may elect to bring a civil action to enforce the Act. If the Commission declines to do so, or if the Commission finds no reasonable cause to believe that a violation has occurred, "a civil action" may be brought by an aggrieved individual. § 706(f)(1), 42 U.S.C. § 2000e-5(f)(1). 12 No provision of Title VII requires claimants to pursue in state court an unfavorable state administrative action, nor does the Act specify the weight a federal court should afford a final judgment by a state court if such a remedy is sought. While we have interpreted the "civil action" authorized to follow consideration by federal and state administrative agencies to be a "trial de novo," Chandler v. Roudebush, 425 U.S. 840, 844-845, 96 S.Ct. 1949, 1951-52, 48 L.Ed.2d 416 (1976); Alexander v. Gardner-Denver Co., supra, at 38, 94 S.Ct., at 1015; McDonnell Douglas Corp. v. Green, supra, at798-799, 93 S.Ct., at 1822-1823, neither the statute nor our decisions indicate that the final judgment of a state court is subject to redetermination at such a trial. Similarly, the congressional directive that the EEOC should give "substantial weight" to findings made in state proceedings, § 706(b), 42 U.S.C. § 2000e-5(b), indicates only the minimum level of deference the EEOC must afford all state determinations; it does not bar affording the greater preclusive effect which may be required by § 1738 if judicial action is involved.7 To suggest otherwise, to say that either the opportunity to bring a "civil action" or the "substantial weight" requirement implicitly repeals § 1738, is to prove far too much. For if that is so, even a full trial on the merits in state court would not bar a trial de novo in federal court and would not be entitled to more than "substantial weight" before the EEOC. The state courts would be placed on a one-way street; the finality of their decisions would depend on which side prevailed in a given case.8 13 Since an implied repeal must ordinarily be evident from the language or operation of a statute, the lack of such manifest incompatability between Title VII and § 1738 is enough to answer our inquiry. No different conclusion is suggested by the legislative history of Title VII. Although no inescapable conclusions can be drawn from the process of enactment,9 the legislative debates surrounding the initial passage of Title VII in 1964 and the substantial amendment adopted in 1972 plainly do not demonstrate that Congress intended to override the historic respect that federal courts accord state court judgments.10 14 At the time Title VII was written, over half of the States had enacted some form of equal employment legislation.11 Members of Congress agreed that the States should play an important role in enforcing Title VII, but also felt the federal system should defer only to adequate state laws.12 Congress considered a number of possible ways of achieving these goals, ranging from limiting Title VII's jurisdiction to States without fair employment laws to having Congress or the President assess the adequacy of state laws. As Title VII emerged from the House, it empowered the EEOC to assess the adequacy of state laws and procedures. § 708(b), H.R. 7152, 88th Cong., 2d Sess. (1964). The Senate bill that was finally signed into law widened the state role by guaranteeing all States with fair employment practices laws an initial opportunity to resolve charges of discrimination. 42 U.S.C. § 2000e-5(c). Senator Humphrey, an advocate of strong enforcement, emphasized the state role under the legislation: 15 "We recognized that many States already have functioning antidiscrimination programs to insure equal access to places of public accommodation and equal employment opportunity. We sought merely to guarantee that these States—and other States which may establish such programs—will be given every opportunity to employ their expertise and experience without premature interference by the Federal Government." 110 Cong.Rec. 12725 (1964). 16 Indeed, New York's fair employment laws were referred to in the congressional debates by proponents of the legislation as an example of existing state legislation effectively combating employment discrimination.13 17 Nothing in the legislative history of the 1964 Act suggests that Congress considered it necessary or desirable to provide an absolute right to relitigate in federal court an issue resolved by a state court. While striving to craft an optimal niche for the States in the overall enforcement scheme, the legislators did not envision full litigation of a single claim in both state and federal forums.14 Indeed, the requirement of a trial de novo in federal district court following EEOC proceedings was added primarily to protect employers from overzealous enforcement by the EEOC. A memorandum signed by seven Representatives accompanying the compromise measure ultimately adopted, concluded that "we believe the employer or labor union will have a fairer forum to establish innocence since a trial de novo is required in district court proceedings." H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 2, p. 29 (1963), U.S.Code Cong. & Admin.News 1964, 2355, 2515. Similar views were expressed in 1972 when Congress reconsidered whether to give the EEOC adjudicatory and enforcement powers.15 There is also reason to believe that Congress required that the EEOC give state findings "substantial weight" because the Commission had too freely ignored the determinations handed down by state agencies.16 18 An important indication that Congress did not intend Title VII to repeal § 1738's requirement that federal courts give full faith and credit to state court judgments is found in an exchange between Senator Javits, a manager of the 1972 bill, and Senator Hruska. Senator Hruska, concerned with the potential for multiple independent proceedings on a single discrimination charge, had introduced an amendment which would have eliminated many of the duplicative remedies for employment discrimination. Senator Javits argued that the amendment was unnecessary because the doctrine of res judicata would prevent repetitive litigation against a single defendant: 19 "[T]here is the real capability in this situation of dealing with the question on the basis of res judicata. In other words once there is a litigation—a litigation started by the Commission, a litigation started by the Attorney General, or a litigation started by the individual—the remedy has been chosen and can be followed through and no relitigation of the same issues in a different forum would be permitted." 118 Cong.Rec. 3370 (1972).17 20 Senator Williams, another proponent of the 1972 bill, echoed Senator Javits' remarks: "[I] do not believe that the individual claimant should be allowed to litigate his claim to completion in one forum, and then if dissatisfied, go to another forum to try again." Id., at 3372. After Senator Javits and Senator Williams spoke, an evenly divided Senate refused to approve the Hruska amendment. 21 It is sufficiently clear that Congress, both in 1964 and 1972, though wary of assuming the adequacy of state employment discrimination remedies, did not intend to supplant such laws. We conclude that neither the statutory language nor the congressional debates suffice to repeal § 1738's long-standing directive to federal courts. B 22 Our finding that Title VII did not create an exception to § 1738 is strongly suggested if not compelled by our recent decision in Allen v. McCurry, that preclusion rules apply in § 1983 actions and may bar federal courts from freshly deciding constitutional claims previously litigated in state courts. Indeed, there is more in 42 U.S.C. § 1983 to suggest an implied repeal of § 1738 than we have found in Title VII. In Allen, we noted that "one strong motive" behind the enactment of § 1983 was the "grave congressional concern that the state courts had been deficient in protecting federal rights." 449 U.S., at 98-99, 101 S.Ct., at 417. Nevertheless, we concluded that "much clearer support than this would be required to hold that § 1738 and the traditional rules of preclusion are not applicable to § 1983 suits." Id., at 99, 101 S.Ct., at 417. 23 Because Congress must "clearly manifest" its intent to depart from § 1738, our prior decisions construing Title VII in situations where § 1738 is inapplicable are not dispositive. They establish only that initial resort to state administrative remedies does not deprive an individual of a right to a federal trial de novo on a Title VII claim. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976), we held that the "civil action" in federal court following an EEOC decision was intended to be a trial de novo. This holding, clearly supported by the legislative history, is not a holding that a prior state court judgment can be disregarded. 24 The petitioner and the Courts of Appeals which have denied res judicata effect to such judgments rely heavily on our statement in Alexander v. Gardner-Denver, that "final responsibility for enforcement of Title VII is vested with federal courts." 415 U.S., at 44, 94 S.Ct., at 1017.18 We did not say, and our language should not be read to imply, that by vesting "final responsibility" in one forum, Congress intended to deny finality to decisions in another. The context of the statement makes this clear. In describing the operation of Title VII, we noted that the EEOC cannot adjudicate claims or impose sanctions; that responsibility, the "final responsibility for enforcement," must rest in federal court. 25 The holding in Gardner-Denver was that a private arbitration decision concerning an employment discrimination claim did not bind the federal courts. Arbitration decisions, of course, are not subject to the mandate of § 1738. Furthermore, unlike arbitration hearings under collective-bargaining agreements, state fair employment practice laws are explicitly made part of the Title VII enforcement scheme. Our decision in Gardner-Denver explicitly recognized the "distinctly separate nature of these contractual and statutory rights." Id., at 50, 94 S.Ct., at 1020. Here we are dealing with a state statutory right, subject to state enforcement in a manner expressly provided for by the federal Act. 26 Gardner-Denver also rested on the inappropriateness of arbitration as a forum for the resolution of Title VII issues. The arbitrator's task, we recognized, is to "effectuate the intent of the parties rather than the requirements of enacted legislation." Id., at 56-57, 94 S.Ct., at 1024. The arbitrator's specialized competence is "the law of the shop, not the law of the land," and "the factfinding process in arbitration usually is not equivalent to judicial factfinding." Ibid. These characteristics cannot be attributed to state administrative boards and state courts. State authorities are charged with enforcing laws, and state courts are presumed competent to interpret those laws. 27 Finally, the comity and federalism interests embodied in § 1738 are not compromised by the application of res judicata and collateral estoppel in Title VII cases. Petitioner maintains that the decision of the Court of Appeals will deter claimants from seeking state court review of their claims ultimately leading to a deterioration in the quality of the state administrative process. On the contrary, stripping state court judgments of finality would be far more destructive to the quality of adjudication by lessening the incentive for full participation by the parties and for searching review by state officials. Depriving state judgments of finality not only would violate basic tenets of comity and federalism, Board of Regents v. Tomanio, 446 U.S. 478, 488, 491-492, 100 S.Ct. 1790, 1797, 1798-99, 64 L.Ed.2d 440 (1980), but also would reduce the incentive for States to work towards effective and meaningful antidiscrimination systems.19 III 28 The petitioner nevertheless contends that the judgment should not bar his Title VII action because the New York courts did not resolve the issue that the District Court must hear under Title VII—whether Kremer had suffered discriminatory treatment—and because the procedures provided were inadequate. Neither contention is persuasive. Although the claims presented to the NYHRD and subsequently reviewed by the Appellate Division were necessarily based on New York law, the alleged discriminatory acts are prohibited by both federal and state laws.20 The elements of a successful employment discrimination claim are virtually identical; petitioner could not succeed on a Title VII claim consistently with the judgment of the NYHRD that there is no reason to believe he was terminated or not rehired because of age or religion. The Appellate Division's affirmance of the NYHRD's dismissal necessarily decided that petitioner's claim under New York law was meritless, and thus it also decided that a Title VII claim arising from the same events would be equally meritless.21 29 The more serious contention is that even though administrative proceedings and judicial review are legally sufficient to be given preclusive effect in New York, they should be deemed so fundamentally flawed as to be denied recognition under § 1738. We have previously recognized that the judicially created doctrine of collateral estoppel does not apply when the party against whom the earlier decision is asserted did not have a "full and fair opportunity" to litigate the claim or issue, Allen v. McCurry, 449 U.S., at 95, 101 S.Ct., at 415; Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 328-329, 91 S.Ct. 1434, 1442-43, 28 L.Ed.2d 788 (1971).22 "Redetermination of issues is warranted if there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation." Montana v. United States, supra, at 164, n.11, 99 S.Ct., at 979, n.11. Cf. Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973). 30 Our previous decisions have not specified the source or defined the content of the requirement that the first adjudication offer a full and fair opportunity to litigate. But for present purposes, where we are bound by the statutory directive of § 1738, state proceedings need do no more than satisfy the minimum procedural requirements of the Fourteenth Amendment's Due Process Clause in order to qualify for the full faith and credit guaranteed by federal law. It has long been established that § 1738 does not allow federal courts to employ their own rules of res judicata in determining the effect of state judgments. Rather, it goes beyond the common law and commands a federal court to accept the rules chosen by the State from which the judgment is taken. McElmoyle v. Cohen, 13 Pet. 312, 326, 10 L.Ed. 177 (1839); Mills v. Duryee, 7 Cranch 481, 485, 3 L.Ed. 411 (1813). As we recently noted in Allen v. McCurry, supra, "though the federal courts may look to the common law or to the policies supporting res judicata and collateral estoppel in assessing the preclusive effect of decisions of other federal courts, Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so." 449 U.S., at 96, 101 S.Ct., at 416. 31 The State must, however, satisfy the applicable requirements of the Due Process Clause. A State may not grant preclusive effect in its own courts to a constitutionally infirm judgment,23 and other state and federal courts are not required to accord full faith and credit to such a judgment. Section 1738 does not suggest otherwise; other state and federal courts would still be providing a state court judgment with the "same" preclusive effect as the courts of the State from which the judgment emerged. In such a case, there could be no constitutionally recognizable preclusion at all.24 32 We have little doubt that Kremer received all the process that was constitutionally required in rejecting his claim that he had been discriminatorily discharged contrary to the statute. We must bear in mind that no single model of procedural fairness, let alone a particular form of procedure, is dictated by the Due Process Clause. Mitchell v. W. T. Grant Co., 416 U.S. 600, 610, 94 S.Ct. 1895, 1901, 40 L.Ed.2d 406 (1974); Inland Empire Council v. Millis, 325 U.S. 697, 710, 65 S.Ct. 1316, 1323, 89 L.Ed. 1877 (1945). " 'The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.' " Mitchell v. W.T. Grant Co., supra, at 610, 94 S.Ct., at 1901 (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961)). Under New York law, a claim of employment discrimination requires the NYHRD to investigate whether there is "probable cause" to believe that the complaint is true. Before this determination of probable cause is made, the claimant is entitled to a "full opportunity to present on the record, though informally, his charges against his employer or other respondent, including the right to submit all exhibits which he wishes to present and testimony of witnesses in addition to his own testimony." State Div. of Human Rights v. New York State Drug Abuse Comm'n, 59 A.D.2d 332, 336, 399 N.Y.S.2d 541, 544 (1977). The complainant also is entitled to an opportunity "to rebut evidence submitted by or obtained from the respondent." 9 N.Y.C.R.R. § 465.6 (1977). He may have an attorney assist him and may ask the division to issue subpoenas. 9 N.Y.C.R.R. § 465.12(c) (1977). 33 If the investigation discloses probable cause and efforts at conciliation fail, the NYHRD must conduct a public hearing to determine the merits of the complaint. N.Y.Exec.Law § 297(4)(a) (McKinney Supp.1981-1982). A public hearing must also be held if the Human Rights Appeal Board finds "there has not been a full investigation and opportunity for the complainant to present his contentions and evidence, with a full record." State Div. of Human Rights v. New York State Drug Abuse Comm'n, supra, at 337, 399 N.Y.S.2d, at 542-543.25 Finally, judicial review in the Appellate Division is available to assure that a claimant is not denied any of the procedural rights to which he was entitled and that the NYHRD's determination was not arbitrary and capricious. N.Y.Civ.Prac.Law § 7803 (McKinney 1981). See Gregory v. New York State Human Rights Appeal Board, 64 A.D.2d 775, 776, 407 N.Y.S.2d 256, 257 (1978); Tenenbaum v. State Div. of Human Rights, 50 A.D.2d 257, 259, 376 N.Y.S.2d 542, 544 (1975). 34 We have no hesitation in concluding that this panoply of procedures, complemented by administrative as well as judicial review, is sufficient under the Due Process Clause.26 Only where the evidence submitted by the claimant fails, as a matter of law, to reveal any merit to the complaint may the NYHRD make a determination of no probable cause without holding a hearing. Flah's, Inc. v. Schneider, 71 A.D.2d 993, 420 N.Y.S.2d 283, 284 (1979). See n. 21, supra. And before that determination may be reached, New York requires the NYHRD to make a full investigation, wherein the complainant has full opportunity to present his evidence, under oath if he so requests. State Div. of Human Rights v. New York State Drug Abuse Control Comm'n, supra, at 336, 399 N.Y.S.2d at 544. The fact that Mr. Kremer failed to avail himself of the full procedures provided by state law does not constitute a sign of their inadequacy. Cf. Juidice v. Vail, 430 U.S. 327, 337, 97 S.Ct. 1211, 1218, 51 L.Ed.2d 376 (1977). IV 35 In our system of jurisprudence the usual rule is that merits of a legal claim once decided in a court of competent jurisdiction are not subject to redetermination in another forum. Such a fundamental departure from traditional rules of preclusion, enacted into federal law, can be justified only if plainly stated by Congress.27 Because there is no "affirmative showing" of a "clear and manifest" legislative purpose in Title VII to deny res judicata or collateral estoppel effect to a state court judgment affirming that a claim of employment discrimination is unproved, and because the procedures provided in New York for the determination of such claims offer a full and fair opportunity to litigate the merits, the judgment of the Court of Appeals is 36 Affirmed. Justice BLACKMUN, with whom Justice BRENNAN and Justice MARSHALL join, dissenting. 37 Today the Court follows an isolated Second Circuit approach and holds that a discrimination complainant cannot bring a Title VII suit in federal court after unsuccessfully seeking state court "review" of a state antidiscrimination agency's unfavorable decision. The Court embraces a rule that has been subject to challenge within the Second Circuit1 and that has been "vigorously attacked and soundly rejected by other courts."2 The Court reaches this result because it purports to find nothing in Title VII inconsistent with the application of the general preclusion rule of 28 U.S.C. § 1738 to the state court's affirmance of the state agency's decision. For a compelling array of reasons, the Court is wrong. 38 * The Court, as it must, concedes that a state agency determination does not preclude a trial de novo in federal district court. Ante, at 468-470 and 1891, n. 7. Congress made it clear beyond doubt that state agency findings would not prevent the Title VII complainant from filing suit in federal court. 39 Title VII provides that no charge may be filed until 60 days "after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated." § 706(c), 42 U.S.C. § 2000e-5(c). After a charge is filed, the Equal Employment Opportunity Commission (EEOC) may take action and, eventually, the complainant may file suit, §§ 706(b) and (f)(1). By permitting a charge to be filed after termination of state proceedings, the statute expressly contemplates that a plaintiff may bring suit despite a state finding of no discrimination.3 40 This fact is also made clear by § 706(b). In 1972, by Pub.L. 92-261, § 4, 86 Stat. 104, Congress amended that section by directing that the EEOC "accord substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local law."4 If the original version of Title VII had given the outcomes of state "proceedings" preclusive effect, Congress would not have found it necessary to amend the statute in 1972 to direct that they be given "substantial weight." And if in 1972 Congress had intended final decisions in state "proceedings" to have preclusive effect, it certainly would not have instructed that they be given "substantial weight."5 41 Thus, Congress expressly recognized in both § 706(b) and § 706(c) that a complainant could bring a Title VII suit in federal court despite the conclusion of state "proceedings." And, as the Court must acknowledge, see ante, at 470-471, n. 8, when Congress referred to state "proceedings," it referred to both state agency proceedings and state judicial review of those agency proceedings. "[T]hroughout Title VII the word 'proceeding,' or its plural form, is used to refer to all the different types of proceedings in which the statute is enforced, state and federal, administrative and judicial." New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 62-63, 100 S.Ct. 2024, 2030-31, 64 L.Ed.2d 723 (1980). 42 Yet the Court nevertheless finds that petitioner's Title VII suit is precluded by the termination of state "proceedings." In this case, the New York State Division of Human Rights (NYHRD) found no probable cause to believe that petitioner had been a victim of discrimination. Under the Court's own rule, that determination in itself does not bar petitioner from filing a Title VII suit in federal district court. According to the Court, however, petitioner lost his opportunity to bring a federal suit when he unsuccessfully sought review of the state agency's decision in the New York courts. As the Court applies preclusion principles to Title VII, the state court affirmance of the state agency decision—not the state agency decision itself—blocks any subsequent Title VII suit. 43 The Court reaches this result through a schizophrenic reading of § 706(b). See ante, at 469-470, and n. 8. According to the Court, when Congress amended § 706(b) so that state "proceedings" would be accorded "substantial weight," it meant two different things at the same time: it intended state agency "proceedings" to be accorded only "substantial weight," while, simultaneously, state judicial "proceedings" in review of those agency "proceedings" would be accorded "substantial weight and more"—that is, "preclusive effect." But the statutory language gives no hint of this hidden double meaning. Instead of reading an unexpressed intent into § 706(b), the Court should accept the plain language of the statute. All state "proceedings," whether agency proceedings or state judicial review proceedings, are entitled to "substantial weight," not "preclusive effect." As the Court implicitly concedes when it permits suit despite the conclusion of agency proceedings, "substantial weight" is a very different concept from "preclusive effect," and Congress thus did not intend for the termination of any state "proceeding" to foreclose a subsequent Title VII suit. 44 In addition, the Court must disregard the clear import of § 706(c). That section explicitly contemplates that a complainant can bring a Title VII suit despite the termination of state "proceedings." Once again, the statute contains no suggestion that any state "proceeding" has preclusive effect on a subsequent Title VII suit. Nonetheless, contrary to § 706(c), the Court bars petitioner's Title VII suit because of the termination of state "proceedings."6 45 The Court's attempt to give § 706(b) a double meaning and to avoid the language of § 706(c) is made all the more awkward because the Court's decision artificially separates the proceedings before the reviewing state court from the state administrative process. Indeed, if Congress meant to permit a Title VII suit despite the termination of state agency proceedings, it is only natural to conclude that Congress also intended to permit a Title VII suit after the agency decision has been simply affirmed by a state court. 46 State court review is merely the last step in the administrative process, the final means of review of the state agency's decision. For instance, in New York, the NYHRD "is primarily responsible for administering the law and to that end has been granted broad powers to eliminate discriminatory practices." Imperial Diner, Inc. v. State Human Rights Appeal Bd., 52 N.Y.2d 72, 77, 436 N.Y.S.2d 231, 234, 417 N.E.2d 525, 528 (1980). When, as in this case, the NYHRD finds no probable cause, a reviewing court must affirm the Division's decision unless it is "arbitrary, capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion," see N.Y.Exec.Law § 297-a(7)(e) (McKinney 1972),7 that is, unless the decision is "devoid of a rational basis." State Office of Drug Abuse Servs. v. State Human Rights Appeal Bd., 48 N.Y.2d 276, 284, 422 N.Y.S.2d 647, 651, 397 N.E.2d 1314, 1318 (1979). If the agency decides to hold a hearing, its decision must be affirmed if it is "supported by substantial evidence on the whole record." N.Y.Exec.Law § 297-a(7)(d) (McKinney 1972). See State Division of Human Rights v. Syracuse University, 46 App.Div.2d 1002, 362 N.Y.S.2d 104 (1974). See generally N.Y.Exec.Law § 298 (McKinney Supp.1981-1982). 47 This review, therefore, is not de novo in the state courts. When it affirms the agency's decision, the reviewing court does not determine that the Division was correct. In fact, the court may not "substitute its judgment for that of the [NYHRD]," State Division of Human Rights v. Mecca Kendall Corp., 53 App. Div.2d 201, 203-204, 385 N.Y.S.2d 665, 666-667 (1976); the court is "not empowered to find new facts or take a different view of the weight of the evidence if the [NYHRD's] determination is supported by substantialevidence," State Division of Human Rights v. Columbia University, 39 N.Y.2d 612, 616, 385 N.Y.S.2d 19, 21, 350 N.E.2d 396, 398 (1976), cert. denied sub nom. Gilinsky v. Columbia University, 429 U.S. 1096, 97 S.Ct. 1112, 51 L.Ed.2d 543 (1977). In affirming, the reviewing court finds only that the agency's conclusion "was a reasonable one and thus may not be set aside by the courts although a contrary decision may 'have been reasonable and also sustainable.' " Imperial Diner, Inc. v. State Human Rights Appeal Bd., 52 N.Y.2d, at 79, 436 N.Y.S.2d, at 235, 417 N.E.2d, at 529, quoting Mize v. State Division of Human Rights, 33 N.Y.2d 53, 56, 349 N.Y.S.2d 364, 366, 304 N.E.2d 231, 233 (1973).8 48 The Court purports to give preclusive effect to the New York court's decision. But the Appellate Division made no finding one way or the other concerning the merits of petitioner's discrimination claim. The NYHRD, not the New York court, dismissed petitioner's complaint for lack of probable cause. In affirming, the court merely found that the agency's decision was not arbitrary or capricious. Thus, although it claims to grant a state court decision preclusive effect, in fact the Court bars petitioner's suit based on the state agency's decision of no probable cause. The Court thereby disregards the express provisions of Title VII, for, as the Court acknowledges, Congress has decided that an adverse state agency decision will not prevent a complainant's subsequent Title VII suit.9 49 Finally, if the Court is in fact giving preclusive effect only to the state court decision, the Court misapplies 28 U.S.C. § 1738 by barring petitioner's suit. The state reviewing court never considered the merits of petitioner's discrimination claim, the subject matter of a Title VII suit in federal court. It is a basic principle of preclusion doctrine, see ante, at 481-482, n. 22, that a decision in one judicial proceeding cannot bar a subsequent suit raising issues that were not relevant to the first decision. "If the legal matters determined in the earlier case differ from those raised in the second case, collateral estoppel has no bearing on the situation." Commissioner v. Sunnen, 333 U.S. 591, 600, 68 S.Ct. 715, 720, 92 L.Ed. 898 (1948). See also Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980). Here, the state court decided only whether the state agency decision was arbitrary or capricious. Since the discrimination claim, not the validity of the state agency's decision, is the issue before the federal court, under § 1738 the state court's decision by itself cannot preclude a federal Title VII suit. 50 Thus, the Court is doing one of two things: either it is granting preclusive effect to the state agency's decision, a course that it concedes would violate Title VII, or it is misapplying § 1738 by giving preclusive effect to a state court decision that did not address the issue before the federal court. Instead of making one of these two mistakes, the Court should accept the fact that the New York state court judicial review is simply the end of the state administrative process, the state "proceedings." The Court searches in vain for a partial repeal of § 1738 in Title VII because it is blind to the fact that judicial review is a part—indeed, a distinctly secondary part—of the administration of discrimination claims filed before the NYHRD.10 II A. 51 The Court's decision also flies in the face of Title VII's legislative history. Under the Court's ruling, a complainant is foreclosed from pursuing his federal Title VII remedy if he unsuccessfully seeks judicial correction of the state agency's adverse disposition of his discrimination charge. Thus, state proceedings are the complainant's sole remedy when he unsuccessfully pursues judicial review on the state side. But Title VII's legislative history makes clear that Congress never intended the outcome of state agency proceedings to be the discrimination complainant's exclusive remedy. 52 One of the principal issues during congressional consideration of Title VII in 1964 was the proper role of state fair employment practices commissions. See, e.g., 110 Cong.Rec. 7216 (1964). At various times, Congress considered proposals to give the state commissions exclusive jurisdiction over discrimination charges. But, repeatedly, Congress rejected those proposals. 53 When Title VII was before the House for the first time, the House twice rejected attempts to prevent the application of Title VII in States that were enforcing adequate fair employment laws. See 110 Cong.Rec. 2727 (1964); id., at 2828. In the end, the House provided for exclusive jurisdiction in the States, but only under certain conditions. Under the House version, the EEOC would have been given authority to determine the adequacy of state agency procedures. If it found the procedures to be adequate, the EEOC was directed to enter into a written agreement with the state agency. In States covered by those agreements, the EEOC would not bring civil actions in cases referred to in the agreements and the complainants would likewise be barred from bringing a civil suit in federal court. H.R. 7152, 88th Cong., 2d Sess., § 708(b) (1964). See 110 Cong.Rec. 7214 (1964). 54 But when the bill went to the Senate, the House approach was discarded for the present provisions of the statute. Senator Dirksen presented the explanation of the changes. Id., at 12817. Among these was the statement that the exclusive-jurisdiction provision of the House bill "which provides for the ceding of Federal jurisdiction is deleted." Id., at 12819. Instead, "it has been replaced by the new provisions of section 706 which provide that where there is a State or local law prohibiting the alleged unlawful employment practice, the State or local authorities are given exclusive jurisdiction for a limited period of time " (emphasis added). Ibid. Thus, after state proceedings had terminated, the complainant was free to seek federal remedies. See id., at 12721 (remarks of Sen. Humphrey); id., at 12595 (remarks of Sen. Clark) (accepting final version because complainant can "eventually" pursue federal remedies after applying for state relief). 55 Congress left open only a narrow exception for possible exclusive state agency jurisdiction. The EEOC was empowered to enter into worksharing agreements with state agencies. A worksharing agreement did not automatically foreclose a complainant from filing a federal civil suit, but the EEOC was free to include such a provision in a worksharing agreement if it considered that course wise. Id., at 12820. See § 709(b). 56 Thus, in the end, Congress expressly decided that no discrimination complainant should be left solely to his remedies before state fair employment commissions, unless the EEOC agreed otherwise. Yet, contrary to this congressional choice, the Court would deny some discrimination victims any federal remedy and would make the decisions of state commissions their exclusive redress, even in the absence of an EEOC agreement. When a state court refuses to overturn a state commission's rejection of a complainant's discrimination claim, the Court declares the state remedy to be exclusive. B 57 But the Court qualifies its holding. The Court permits the state agency's decision to be the complainant's exclusive remedy only if the agency's procedures satisfy the minimal requirements of due process. Ante, at 481-485. The Court surveys the procedures of the NYHRD and concludes that they are in accord with due process. Ante, at 483-485.11 This discussion by itself demonstrates the fallacy of the Court's attempt to differentiate between the state agency's decision and the state court's affirmance of that decision. By relying more heavily on the adequacy of the state agency's procedures than on the adequacy of the state court's procedures, the Court underscores that it is, in fact, granting preclusive effect to a state administrative decision. 58 It is important, also, to note that in two different ways the Court's inquiry violates the congressional intent. First, the Court undertakes to determine whether the state procedures are adequate when Congress has expressly left that decision to the EEOC. Congress explicitly permitted a state complainant to file suit in federal court despite a final state agency decision, unless the EEOC has signed a worksharing agreement with the state agency foreclosing subsequent federal suits. If the EEOC agreed with the Court that minimal due process in agency procedures justified barring subsequent Title VII suits when the state agency's decision had been affirmed by a state court, the EEOC could sign worksharing agreements with state agencies on those terms. By assuming the authority to make that decision, the Court usurps a role that Congress reserved to the EEOC. 59 Second, throughout its consideration of Title VII, Congress was concerned that state agency procedures were not the equivalent of those that it intended federal authorities to employ. Senator Clark told the Senate that "State and local FEPC laws vary widely in effectiveness." 110 Cong.Rec. 7205 (1964). He continued: "In many areas effective enforcement is hampered by inadequate legislation, inadequate procedures, or an inadequate budget." Ibid. Unlike the Court, Congress realized that no legal doctrine could accurately gauge the effectiveness of state agencies and laws in eliminating discrimination. In their interpretative memorandum, Senators Clark and Case12 explained: 60 "It has been suggested . . . that there should be some provision automatically providing for exclusive State jurisdiction where adequate State remedies for discrimination in employment exist. Such a proposal is unworkable. Congress cannot determine nor can we devise a formula for determining which State laws and procedures are adequate. . . . An antidiscrimination law cannot be evaluated simply by an examination of its provisions, 'for the letter killeth, but the spirit giveth life.' " Id., at 7214. 61 Yet the Court concludes that minimal due process standards provide safeguards sufficient to warrant denying a discrimination victim federal remedies if a state court rejects his request to overturn an adverse state agency decision. In Title VII, Congress wanted to assure discrimination victims more than bare due process; it wanted them to have the benefit of a vigorous effort to eliminate discrimination. See Al v. Gardner-Denver Co., 415 U.S. 36, 44-45, 94 S.Ct. 1011, 1017-18, 39 L.Ed.2d 147 (1974). By affording some discrimination complainants less, the Court contravenes the congressional intent behind Title VII. C 62 The Court's search of the legislative history uncovers only a single bit of concrete support for its interpretation of Title VII.13 But, ironically, the legislative history cited by the Court actually undercuts its position. During the 1972 debates over changes in Title VII, Senator Hruska proposed an amendment that would have made Title VII the exclusive remedy for a discrimination victim, with certain exceptions. One of the exceptions permitted concurrent state proceedings. The Senator explained: "[T]here would be a further exception and that would be proceedings in a State agency. Those proceedings could continue notwithstanding the pendency of an employee's action under section 706 of title VII. It seems to me and others that this is only fair." 118 Cong.Rec. 3369 (1972). Thus, even Senator Hruska would not have prevented duplicative state and federal proceedings. Here is strong evidence of a congressional consensus that state and federal remedies should exist independently of each other. 63 The Court quotes part of Senator Javits' response to Senator Hruska's proposal. See ante, at 475. What the Court fails to point out is that the bulk of Senator Javits' response rejected the suggestion that the number of discrimination remedies should be reduced. Senator Javits quoted with approval from the testimony of an official of the Department of Justice: 64 "In the field of civil rights, the Congress has regularly insured that there be a variety of enforcement devices to insure that all available resources are brought to bear on problems of discrimination. . . . 65 "At this juncture, when we are all agreed that some improvement in the enforcement of Title VII is needed, it would be . . . unwise to diminish in any way the variety of enforcement means available to deal with discrimination in employment." 118 Cong.Rec. 3369-3370 (1972). 66 Thus, since Senator Javits was responding to a proposed amendment that expressly provided for separate federal and state proceedings, he certainly did not suggest that state proceedings should bar Title VII suits when he spoke of res judicata. See ante, at 475.14 At the most, he may have been referring to suits brought under overlapping federal statutes. And, given his reluctance to reduce the number of available antidiscrimination remedies, it is not clear that his remarks were intended to reach even that far.15 In no sense can the defeat of Senator Hruska's amendment be interpreted as a congressional endorsement of the Court's decision to bar a complainant's Title VII suit based on a state court affirmance of an adverse state agency decision.16 In Senator Javits' own words, "[w]e should not cut off the range of remedies which is available." 118 Cong.Rec. 3370 (1972).17 III 67 The Court's opinion today is also contrary to the rationales underlying its past Title VII decisions. Time and again, the Court has held that Congress did not intend to foreclose a Title VII suit because of the conclusion of proceedings in another forum. 68 The case list begins with McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), when the Court refused to prevent a plaintiff from bringing suit in federal court because of an EEOC determination of no reasonable cause. The Court cited "the large volume of complaints before the Commission and the nonadversary character of many of its proceedings," id., at 799, 93 S.Ct., at 1822; noted that Title VII "does not restrict a complainant's right to sue to those charges as to which the Commission has made findings of reasonable cause," id., at 798, 93 S.Ct., at 1822; and refused to "engraft on the statute a requirement which may inhibit the review of claims of employment discrimination in the federal courts," id., at 798-799, 93 S.Ct., at 1822-23. The Court today could just as easily have written about "the nonadversary character" of state agency proceedings and the fact that Title VII does not "restrict a complainant's right to sue" to those charges as to which a state court has not affirmed the state agency's findings. 69 In Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), the Court repeated the same theme by permitting a Title VII suit despite a prior adverse arbitration under a collective-bargaining agreement. The Court emphasized that Congress intended a scheme of overlapping, independent, supplementary discrimination remedies: 70 "[L]egislative enactments in this area have long evinced a general intent to accord parallel or overlapping remedies against discrimination. . . . Title VII provides for consideration of employment-discrimination claims in several forums. . . . And, in general, submission of a claim to one forum does not preclude a later submission to another. Moreover, the legislative his tory of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes." Id., at 47-48, 94 S.Ct., at 1019 (footnotes omitted) (emphasis added). 71 The Court today disregards the congressional intent described in Alexander when it makes state agency proceedings the exclusive remedy for those complainants who unsuccessfully pursue state judicial review. 72 Finally, in two subsequent decisions, the Court adhered to Alexander. In Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 461, 95 S.Ct. 1716, 1720, 44 L.Ed.2d 295 (1975), it held that Title VII and 42 U.S.C. § 1981, although "related" and "directed to most of the same ends," provide "separate, distinct, and independent" discrimination remedies. And in Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976), the Court permitted a federal employee to bring a Title VII suit even though the Civil Service Commission had affirmed a federal agency's rejection of the employee's discrimination claim. 73 In each of these four cases, the Court refused to close the doors of the federal courthouse to the Title VII plaintiff. The Court has allowed Title VII plaintiffs to sue in federal court, though they had failed before the EEOC, an arbitrator, and a federal agency. And even today's majority must add another forum to this list, namely, a state antidiscrimination agency. Until now, it has been "clear from [the] scheme of interrelated and complementary state and federal enforcement that Congress viewed proceedings before the EEOC and in federal court as supplements to available state remedies for employment discrimination." New York Gaslight Club, Inc. v. Carey, 447 U.S., at 65, 100 S.Ct., at 2031. The Court departs from the reasoning of an unbroken line of its prior decisions when it bars a discrimination complainant from suing under Title VII simply because he unsuccessfully sought state judicial "review" of an adverse state agency decision. IV 74 Perhaps the most disturbing aspect of the Court's decision is its tendency to cut back upon two critical policies underlying Title VII. 75 First, Congress intended that state antidiscrimination procedures be an integral part of the Nation's battle against discrimination. For that reason, Congress did not pre-empt state antidiscrimination agencies, see 110 Cong.Rec. 7216 (1964), and instead gave state and local authorities an initial opportunity to resolve discrimination complaints. See, e.g., id., at 12725 (remarks of Sen. Humphrey). 76 The Court's decision is directly contrary to this congressional intent. The lesson of the Court's ruling is: An unsuccessful state discrimination complainant should not seek state judicial review.18 If a discrimination complainant pursues state judicial review and loses—a likely result given the deferential standard of review in state court—he forfeits his right to seek redress in a federal court. If, however, he simply bypasses the state courts, he can proceed to the EEOC and ultimately to federal court. Instead of a deferential review of an agency record, he will receive in federal court a de novo hearing accompanied by procedural aids such as broad discovery rules and the ability to subpoena witnesses. Thus, paradoxically, the Court effectively has eliminated state reviewing courts from the fight against discrimination in an entire class of cases. Consequently, the state courts will not have a chance to correct state agency errors when the agencies rule against discrimination victims, and the quality of state agency decisionmaking can only deteriorate.19 It is a perverse sort of comity that eliminates the reviewing function of state courts in the name of giving their decisions due respect. 77 This argument against preclusion is not novel. In prior decisions, the Court has refused to set up incentives for discrimination complainants to abandon alternative remedies. In Alexander v. Gardner-Denver Co., 415 U.S., at 59, 94 S.Ct., at 1025, it concluded: "Fearing that the arbitral forum cannot adequately protect their rights under Title VII, some employees may elect to bypass arbitration and institute a lawsuit. The possibility of voluntary compliance or settlement of Title VII claims would thus be reduced, and the result could well be more litigation, not less." In New York Gaslight Club, Inc. v. Carey, 447 U.S., at 65, 100 S.Ct., at 2032, the Court addressed state proceedings directly, explaining: "Complainants unable to recover fees in state proceedings may be expected to wait out the 60-day deferral period, while focusing efforts on obtaining federal relief. . . . Only authorization of fee awards ensures incorporation of state procedures as a meaningful part of the Title VII enforcement scheme." In this case, the Court has chosen preclusion over common sense, with the result that the state courts will decline, not grow, in importance.20 78 Second, the Court, for a small class of discrimination complainants, has undermined the remedial purpose of Title VII. Invariably, there will be some complainants who will not be aware of today's decision. The Court has thus constructed a rule that will serve as a trap for the unwary pro se or poorly represented complainant. For these complainants, their sole remedy lies in the state administrative processes. Yet, inevitably those agencies do not give all discrimination complaints careful attention. Often hampered by "inadequate procedures" or "an inadequate budget," see 110 Cong.Rec. 7205 (1964), the state antidiscrimination agency may give a discrimination charge less than the close examination it would receive in federal court.21 When, as in this case, the state agency dismisses for lack of probable cause, the discrimination complainant is particularly at risk, because inadequate staffing of state agencies can lead to "a tendency to dismiss too many complaints for alleged lack of probable cause."22 Though state courts may be diligent in reviewing agency dismissals for no probable cause, the nature of the agency's deliberations combined with deferential judicial review can lead only to discrimination charges receiving less careful consideration than Congress intended when it passed Title VII. The Court's decision thus cannot be squared with the congressional intent that the fight against discrimination be a policy "of the highest priority." Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968).23 V 79 For all these reasons, the Court's decision is neither "strongly suggested" nor "compelled" by Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). See ante, at 476. In McCurry, the Court found only "the most equivocal support," 449 U.S., at 99, 101 S.Ct., at 417, for an argument that Congress intended to override the general preclusion rule of § 1738 when it enacted 42 U.S.C. § 1983. But here, the language, the legislative history, and the fundamental policies of Title VII all demonstrate that Congress contemplated relitigation of a discrimination claim in federal court, even though a state court had refused to disturb a state agency decision adverse to the complainant. 80 And no drastic consequences would flow from a decision finding § 1738 inapplicable in this case. The Court would not be forced to permit a subsequent Title VII suit in federal court if the complainant already had lost a trial on the merits in state court. See n. 10, supra. Furthermore, the state court affirmance of the state agency's decision would not be discarded. The state decision could be "admitted as evidence and accorded such weight as the court deems appropriate," Alexander v. Gardner-Denver Co., 415 U.S., at 60, 94 S.Ct., at 1025, that is, "substantial weight," see § 706(b). 81 But despite the reasonableness of the rule followed by other Courts of Appeals, see n. 2, supra, the Court improperly applies § 1738 to bar petitioner from bringing a Title VII suit in federal court. I dissent. 82 Justice STEVENS, dissenting. 83 The issue that divides the Court is fairly narrow. The majority concedes that state agency proceedings will not bar a federal claim under Title VII, ante, at 470, n. 7, and Justice BLACKMUN assumes, arguendo, that a state court decision on the merits of a discrimination claim would create such a bar, ante, at 494-495, n. 10, and this page (dissenting opinion). Thus, the area of dispute is limited to cases in which an adverse agency decision has been reviewed and upheld by a state court. 84 The proper resolution of the dispute depends, I believe, on the character of the judicial review to which the agency decision is subjected. If it is the equivalent of a de novo trial on the merits, then I would agree that the analysis in the Court's opinion leads to the conclusion that 28 U.S.C. § 1738 forecloses a second lawsuit in a federal court. But as Justice BLACKMUN has demonstrated, ante, at 490-493, that is not the character of the relevant judicial review in New York. The New York court's holding that the agency decision was not arbitrary or capricious merely establishes as a matter of law that a rational adjudicator might have resolved the discrimination issue either way.* It is therefore entirely consistent with § 1738 for a federal district court to accept the New York judgment as having settled that proposition, and then to proceed to resolve the discrimination issue in a de novo trial. 85 Both the text of Title VII and its legislative history indicate that Congress intended the claimant to have at least one opportunity to prove his case in a de novo trial in court. Thus, while I agree with the Court that Title VII did not impliedly repeal § 1738, I cannot accept the Court's construction of § 1738 in this case. In New York, as Justice BLACKMUN demonstrates, the judicial review is simply a part of the "proceedings" that are entitled to "substantial weight" under Title VII. 86 Accordingly, I respectfully dissent. 1 The statute provides that "[i]n the case of an alleged unlawful employment practice occurring in a State . . . which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (b) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated." 42 U.S.C. § 2000e-5(c). See also Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972); 29 CFR § 1601.13 (1981). 2 Kremer's complaint filed with the NYHRD alleged discrimination on the basis of age and religion, and did not contain a separate claim concerning national origin. 3 Sections 706(f)(1) and (3), 42 U.S.C. §§ 2000e-5(f)(1) and (3), provide that where the EEOC determines that there is no reasonable cause to believe that a charge is true, it must dismiss the charge and issue the complainant a statutory right-to-sue letter. Where the Commission has not filed a civil action against the employer, it must, if requested, issue a right-to-sue letter 180 days after the charge was filed. Within 90 days after receipt of the right-to-sue letter, the complainant may institute a civil action in federal district court against the party named in the charge. 4 No further mention was made of age discrimination, which is not covered by Title VII. Nor has petitioner argued at any point that his national origin claim was in any sense distinct from his claim of religious discrimination. Of course, if Kremer desired to make such a claim, he was obligated to first bring it before the NYHRD. See n. 1, supra. Moreover, "[a] party cannot escape the requirements of full faith and credit and res judicata by asserting its own failure to raise matters clearly within the scope of a prior proceeding." Underwriters National Assur. Co. v. North Carolina Life & Accident & Health Insurance Guaranty Assn., 455 U.S. 691, 710, 102 S.Ct. 1357, 1368, 71 L.Ed.2d 558 (1982); Sherrer v. Sherrer, 334 U.S. 343, 352, 68 S.Ct. 1087, 1091, 92 L.Ed. 1429 (1948). 5 Three Courts of Appeals have held that a federal court may not attribute preclusive deference to prior state court decisions reviewing state agency determinations. Smouse v. General Electric Co., 626 F.2d 333 (CA3 1980) (per curiam); Unger v. Consolidated Foods Corp., 657 F.2d 909 (CA7 1981); Gunther v. Iowa State Men's Reformatory, 612 F.2d 1079 (CA8), cert. denied, 446 U.S. 966, 100 S.Ct. 2942, 64 L.Ed.2d 825 (1980). The Fourth Circuit has held that issues decided in a de novo state judicial proceeding are not subject to redetermination in a subsequent Title VII action. Moosavi v. Fairfax County Board of Education, 666 F.2d 58 (1981). 6 In the Act of May 26, 1790, ch. 11, 1 Stat. 122, Congress required all federal courts to give such preclusive effect to state court judgments "as they have by law or usage in the courts of the state from [which they are] taken." In essentially unchanged form, the Act, now codified as 28 U.S.C. § 1738, provides that "[t]he . . . judicial proceedings of any court of any such State . . . shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State. . ." Accordingly the federal courts consistently have applied res judicata and collateral estoppel to causes of action and issues decided by state courts. Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 416, 66 L.Ed.2d 308 (1980); Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979); Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832 (1947). Indeed, from Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195 (1877), to Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981), this Court has consistently emphasized the importance of the related doctrines of res judicata and collateral estoppel in fulfilling the purpose for which civil courts had been established, the conclusive resolution of disputes within their jurisdiction. Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. Allen v. McCurry, supra, at 94, 101 S.Ct., at 414; Cromwell v. County of Sac, supra, at 352. Under collateral estoppel, once a court decides an issue of fact or law necessary to its judgment, that decision precludes relitigation of the same issue on a different cause of action between the same parties. Montana v. United States, supra, at 153, 99 S.Ct., at 973. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, n. 5, 99 S.Ct. 645, 649, n. 5, 58 L.Ed.2d 552 (1979). Thus, invocation of res judicata and collateral estoppel "relieve[s] parties of the cost and vexation of multiple lawsuits, conserve[s] judicial resources, and, by preventing inconsistent decisions, encourage[s] reliance on adjudication." Allen v. McCurry, 449 U.S., at 94, 101 S.Ct., at 414. When a state court has adjudicated a claim or issue, these doctrines also serve to "promote the comity between state and federal courts that has been recognized as a bulwark of the federal system." Id., at 96, 101 S.Ct., at 416. 7 EEOC review of discrimination charges previously rejected by state agencies would be pointless if the federal courts were bound by such agency decisions. Batiste v. Furnco Constr. Corp., 503 F.2d 447, 450, n. 1 (CA7 1974), cert. denied, 420 U.S. 928, 95 S.Ct. 1127, 43 L.Ed.2d 399 (1975). Nor is it plausible to suggest that Congress intended federal courts to be bound further by state administrative decisions than by decisions of the EEOC. Since it is settled that decisions by the EEOC do not preclude a trial de novo in federal court, it is clear that unreviewed administrative determinations by state agencies also should not preclude such review even if such a decision were to be afforded preclusive effect in a State's own courts. Garner v. Giarrusso, 571 F.2d 1330 (CA5 1978); Batiste v. Furnco Constr. Corp., supra; Cooper v. Philip Morris, Inc., 464 F.2d 9 (CA6 1972); Voutsis v. Union Carbide Corp., 452 F.2d 889 (CA2 1971), cert. denied, 406 U.S. 918, 92 S.Ct. 1768, 32 L.Ed.2d 117 (1972). 8 Section 706(b) guarantees that the outcome of both agency and judicial proceedings will be given substantial weight. Justice BLACKMUN interprets that provision as a ceiling on the deference federal courts are obligated to give state court judgments. Post, at 489. The "substantial weight" requirement, however, was added to Title VII in 1972 not because the EEOC was giving state administrative decisions too much weight, but because it was affording them too little significance. See infra, at 474-475, and n. 16. Finding an implied repeal of § 1738 in an amendment directed exclusively at increasing the deference to be given state decisions would be contrary to normal principles of statutory interpretation, let alone the more difficult test of demonstrating an implied repeal. It is even more implausible to find an implied repeal in the limited deferral to pending state and local proceedings, § 706(c), 42 U.S.C. § 2000e-5(c). First, that provision does not even address the issue of the proper weight to be afforded state decisions. Moreover, because the section requires complainants to wait no longer than 60 days before initiating federal proceedings, it is doubtful that Congress even contemplated that the provision applied after a complaint had run the full course of state administrative and judicial consideration. See, e.g., Oscar Mayer & Co. v. Evans, 441 U.S. 750, 755, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979) (Section 706(c) "is intended to give state agencies a limited opportunity to resolve problems of employment discrimination") (emphasis added); Love v. Pullman Co., 404 U.S., at 526, 92 S.Ct., at 618 (The purpose of § 706(c) is "to give state agencies a prior opportunity to consider discrimination complaints" (emphasis added). For the same reasons, the EEOC's authority to enter work-sharing agreements with state agencies is irrelevant. This provision, like the limited deferral and "substantial weight" requirements, is directed at increasing, not reducing, the authority of state agencies to resolve employment discrimination disputes. All of these provisions are directed toward administrative cooperation, and lend no evidence of congressional intent to compromise or circumscribe the validity of state judicial proceedings. Although Justice BLACKMUN implies that work-sharing agreements constitute the one "narrow exception for possible exclusive state agency jurisdiction," post, at 496, left by Congress, neither the statute or its background so indicates. Indeed, it is no "exception" at all; even though the EEOC declines to process a charge under a work-sharing agreement, the statute does not prevent the complainant from subsequently filing suit in federal court. 9 Interpretation of Title VII is hampered by the fact that there are no authoritative legislative reports. The House Civil Rights bill went directly to the Senate floor without committee consideration in hopes that it would be approved without change. This did not happen. The bill including Title VII, was amended 87 times during the 83-day debate in the Senate. Upon being returned to the House, the bill was not subjected to the usual conference procedure. Instead, the House voted acceptance of the Senate measure. See EEOC, Legislative History of Titles VII and XI of the Civil Rights Act of 1964, pp. 9-11 (1968) (hereafter 1964 Leg.Hist.). 10 Justice BLACKMUN reads the legislative history differently, post, at 494-499, seizing upon doubts expressed concerning the adequacy of state remedies. It does not follow, however, that an implied repeal of § 1738 has been demonstrated. For that, the intent of Congress "must be clear and manifest." Radzanower v. Touche Ross & Co., 426 U.S. 148, 154, 96 S.Ct. 1989, 1993, 48 L.Ed.2d 540 (1976). Justice BLACKMUN never claims that this rigorous standard is satisfied. Nor would such a claim be persuasive. Similar expressions of congressional concern with state remedies were unsuccessfully mustered in Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), where we refused to find an implied repeal of § 1738 in the passage of 42 U.S.C. § 1983. See infra, at 476. Justice BLACKMUN also claims too much from the refusal of Congress to place employment discrimination within the exclusive jurisdiction of the States, 22 of whom lacked any fair employment laws at the time Title VII was enacted. Reluctance to rely entirely on the States does not require a departure from traditional rules of res judicata when a state fair employment law exists, a state agency has investigated and processed a grievance, and a state court has upheld the agency's decision as procedurally fair and substantively justified. 11 See Bureau of National Affairs, State Fair Employment Laws and Their Administration (1964). See also 110 Cong.Rec. 7205 (1964) (remarks of Sen. Clark). 12 In their interpretive memorandum, Senators Clark and Case, floor managers of the bill, stated that "Title VII specifically provides for the continued effectiveness of state and local laws and procedures for dealing with discrimination in employment" and that "it will not override any state law or municipal ordinance which is not inconsistent." Id., at 7214, 7216. See also id., 7205 (remarks of Sen. Clark); id., at 12725 (remarks of Sen. Humphrey). See generally Jackson, Matheson & Piskorski, The Proper Role of Res Judicata and Collateral Estoppel in Title VII Suits, 79 Mich.L.Rev. 1485, 1493-1497 (1981) (hereinafter Jackson, Matheson, & Piskorski). 13 110 Cong.Rec. 1635-1636 (1964), reprinted in 1964 Leg.Hist. 3345-3346 (remarks of Cong. Reid) ("The New York State Commission for Human Rights has pioneered effectively and it has now been copied in 22 States . . ."); 110 Cong.Rec. 1643 (1964), 1964 Leg.Hist. 3258-3259 (remarks of Cong. Ryan); 110 Cong.Rec. 12595 (1964), 1964 Leg.Hist. 3066 (remarks of Sen. Clark). 14 Senator Dirksen, the principal drafter of the Senate bill, stated in no uncertain terms his desire to avoid multiple suits arising out of the same discrimination: "What a layering upon layer of enforcement. What if the court orders differed in their terms or requirements? There would be no assurance that they would be identical. Should we have the Federal forces of justice pull on the one arm, and the State forces of justice tug on the other? Should we draw and quarter the victim?" 110 Cong.Rec. 6449 (1964). 15 See, e.g., 117 Cong.Rec. 42026 (1971), reprinted in Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, Legislative History of the Equal Employment Opportunity Act of 1972, p. 571 (1972) (hereafter 1972 Leg.Hist.) (remarks of Sen. Allen); 118 Cong.Rec. 932 (1972), 1972 Leg.Hist. 807 (same); 118 Cong.Rec. 311, 933 (1972), 1972 Leg.Hist. 632, 809 (remarks of Sen. Ervin); 118 Cong.Rec. 595 (1972), 1972 Leg.Hist. 682 (remarks of Sen. Tower); 118 Cong.Rec. 699-703 (1972), 1972 Leg.Hist. 698-709 (remarks of Sen. Fannin). Opponents successfully objected to combining investigatory, adjudicatory, and enforcement power in a single agency. A compromise, sponsored by Senator Dominick, was adopted which gave the EEOC the power to bring suit but retained a trial de novo in federal district court so that employers and other defendants would receive "an impartial judicial decision free from accusation of institutional bias." S.Rep.No.92-415, p. 86 (1971), 1972 Leg.Hist. 464 (views of Sen. Dominick). 16 Prior to the 1972 amendments, the EEOC was free to ignore state administrative decisions. In the Senate debates, Senator Montoya asked Senator Williams, the floor manager of the amendments, and Senator Ervin, an opponent, to explain the purpose of the "substantial weight" directive. Senator Ervin responded that the provision's purpose was to prevent the EEOC from reversing state decisions "peremptorily." The Commission would be required to "give due respect to the findings of the State or local authorities." 118 Cong.Rec. 310 (1972), 1972 Leg.Hist. 627. Senator Williams did not dispute this answer. See also Jackson, Matheson, & Piskorski, supra, n. 12, at 1504-1505. 17 We reject petitioner's suggestion, repeated by Justice BLACKMUN, post, at 499-501, that since the Hruska amendment excluded state proceedings, Senator Javits' comments "should in context also be read as excluding state proceedings from any application of res judicata in Title VII suits." Reply Brief for Petitioner 9, n.** Not only is the idea that even a full state judicial proceeding be excluded from res judicata effect implausible on its face, but Senator Javits prefaced his res judicata statement by discussing the very New York employment discrimination laws under which Kremer proceeded. 118 Cong.Rec. 3370 (1972). 18 See, e.g., Smouse v. General Electric Co., 626 F.2d, at 334-335; Gunther v. Iowa State Men's Reformatory, 612 F.2d, at 1082-1083. 19 Here Justice BLACKMUN'S dissent rests on two dubious premises: that plaintiffs will be deterred from seeking state judicial review of administrative decisions and that the more such cases are subject to judicial review the better the system becomes. Obvious incentives remain for an individual with a truly meritorious claim to proceed. In New York, judicial review of "no probable cause" determinations is rigorous in both a procedural and substantive sense, see infra, at 479-485, and n. 21. Forgoing such review ensures considerable delay and lengthening of the adjudicatory process. And the reward for such forbearance is a federal proceeding in which the existing adverse state decision must be given "substantial weight." Justice BLACKMUN assumes, without supporting evidence, that this "strategy" is wise and very likely to be pursued in many cases. Even were this assumption plausible, it hardly follows that state proceedings are improved by the sheer quantity of administrative adjudications brought before them. 20 The New York law is at least as broad as Title VII. Title 42 U.S.C. § 2000e-2(a) provides: "It shall be an unlawful employment practice for an employer— "(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin. . . ." New York Exec. Law § 296(1) (McKinney Supp.1981-1982) provides: "It shall be an unlawful discriminatory practice: "(a) For an employer or licensing agency, because of the age, race, creed, color, national origin, sex, or disability, or marital status of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual." We, of course, do not decide in this case whether jurisdiction to entertain Title VII claims is limited to the federal courts. 21 Justice BLACKMUN and Justice STEVENS wrongly assert that the New York court's holding does not constitute a finding "one way or the other" on the merits of petitioner's claim. Post, at 492 (BLACKMUN, J., dissenting); post, at 509 (STEVENS, J., dissenting). When the NYHRD summarily dismisses a complaint, the appellate division must find that the petitioner's "complaint lacks merit as a matter of law." Flah's Inc. v. Schneider, 71 A.D.2d 993, 420 N.Y.S.2d 283, 284 (1979). See also New York State Div. for Youth v. State Human Rights Appeal Board, 83 A.D.2d 972, 973, 442 N.Y.S.2d 813, 814 (1981) ("Since the investigation as conducted by the division involved separate meetings without hearings, it must appear in such instance that, as a matter of law, the complaint lacks merit in order for the division to dismiss the complaint"); State Div. of Human Rights v. Blanchette, 73 A.D.2d 820, 821, 423 N.Y.S.2d 745, 746 (1979) ("[T]he division may not determine that there is no probable cause for the complaint and dismiss it when the facts revealed in the investigation do not 'generate conviction in and persuade a fair and detached fact finder' that that there is no substance in the complaint"); Stasiak v. Montgomery Ward & Co., 66 A.D.2d 962, 962, 411 N.Y.S.2d 700, 701 (1978) ("In order to sustain a dismissal of a complaint before the complainant has had his opportunity to present his case in a formal manner, it must appear virtually as a matter of law that the complaint lacks merit"); Altiery v. State Div. of Human Rights, 61 A.D.2d 780, 781, 402 N.Y.S.2d 405, 406 (1978) ("It cannot be said as a matter of law, that the complaint . . . lacked merit"). Decisions applying the standard employed in the foregoing cases are decisions on the merits, just as was the decision in State Div. of Human Rights v. New York State Drug Abuse Comm'n, 59 A.D.2d 332, 336, 399 N.Y.S.2d 541, 544 (1977) (when a complainant has a "full opportunity to present his evidence and exhibits, under oath if he so requests," the presence of a "rational basis in the record" for that decision will suffice). It is well established that judicial affirmance of an administrative determination is entitled to preclusive effect. CIBA Corp. v. Weinberger, 412 U.S. 640, 644, 93 S.Ct. 2495, 37 L.Ed.2d 230 (1973); Grubb v. Public Utilities Comm'n, 281 U.S. 470, 475-477, 50 S.Ct. 374, 376-377, 74 L.Ed. 972 (1930). There is no requirement that judicial review must proceed de novo if it is to be preclusive. Furthermore, as we have explained, Congress did not draft the de novo requirement in order to deny preclusive effect to state decisions. See supra, at 474. 22 While our previous expressions of the requirement of a full and fair opportunity to litigate have been in the context of collateral estoppel or issue preclusion, it is clear from what follows that invocation of res judicata or claim preclusion is subject to the same limitation. The lower courts did not discuss whether it is the doctrine of res judicata or collateral estoppel that applies here. Section 1738 requires dismissal of petitioner's Title VII suit whether his Title VII claim is precluded by the New York judgment or whether he is collaterally estopped by that judgment from complaining that Chemico had discriminated against him. Res judicata has recently been taken to bar claims arising from the same transaction even if brought under different statutes, Nash County Bd. of Ed. v. Biltmore Co., 640 F.2d 484, 488 (CA4), cert. denied, 454 U.S. 878, 102 S.Ct. 359, 70 L.Ed.2d 188 (1981). See also Restatement (Second) of Judgments § 61(1) (Tent. Draft No. 5, Mar. 10, 1978); Currie, Res Judicata: The Neglected Defense, 45 U.Chi.L.Rev. 317, 340-341 (1978). It may be that petitioner would be precluded under res judicata from pursuing a Title VII claim. However that may be, it is undebatable that petitioner is at least estopped from relitigating the issue of employment discrimination arising from the same events. 23 Cf. McDonald v. Mabee, 243 U.S. 90, 92, 37 S.Ct. 343, 344, 61 L.Ed. 608 (1917) ("[A]n ordinary personal judgment for money, invalid for want of service amounting to due process of law, is as ineffective in the State as it is outside of it"); Haddock v. Haddock, 201 U.S. 562, 567, 568, 26 S.Ct. 525, 526, 50 L.Ed. 867 (1906). 24 The Court's decisions enforcing the Full Faith and Credit Clause of the Constitution, Art. IV, § 1, also suggest that what a full and fair opportunity to litigate entails is the procedural requirements of due process. Sherrer v. Sherrer, 334 U.S., at 348, 68 S.Ct., at 1089 ("there is nothing in the concept of due process which demands that a defendant be afforded a second opportunity to litigate the existence of jurisdictional facts"); Baldwin v. Iowa Traveling Men's Assn., 283 U.S. 522, 524, 51 S.Ct. 517, 75 L.Ed. 1244 (1931); Chicago Life Insurance Co. v. Cherry, 244 U.S. 25, 30, 37 S.Ct. 492, 493, 61 L.Ed. 966 (1917). Section 1738 was enacted to implement the Full Faith and Credit Clause, Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 437, 64 S.Ct. 208, 212, 88 L.Ed. 149 (1943), and specifically to insure that federal courts, not included within the constitutional provision, would be bound by state judgments. Davis v. Davis, 305 U.S. 32, 40, 59 S.Ct. 3, 6, 83 L.Ed. 26 (1938) ("The Act extended the rule of the Constitution to all courts, federal as well as state"). See also Underwriters National Assur. Co. v. North Carolina Life & Accident & Health Ins. Guaranty Assn., 455 U.S. 691, 102 S.Ct. 1357, 71 L.Ed.2d 558 (1982). It is therefore reasonable that § 1738 be subject to no more restriction than the Full Faith and Credit Clause. 25 The Human Rights Appeal Board is authorized to reverse or remand any order that is not "supported by substantial evidence on the whole record" or that is "arbitrary, capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." N.Y.Exec. Law §§ 297-a(7)(d) and (e) (McKinney 1972). 26 Certainly, the administrative nature of the factfinding process is not dispositive. In United States v. Utah Construction & Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966), we held that, so long as opposing parties had an adequate opportunity to litigate disputed issues of fact, res judicata is properly applied to decisions of an administrative agency acting in a "judicial capacity." Id., at 422, 86 S.Ct., at 1560. 27 One example is the authorization for federal courts to reexamine state findings upon a request for a writ of habeas corpus. 28 U.S.C. § 2254. 1 Before the Court of Appeals addressed the issue, one District Court in the Second Circuit held that a state court affirmance of a decision by the New York State Division of Human Rights did not preclude a subsequent Title VII suit. Benneci v. Department of Labor, New York State Division of Employment, 388 F.Supp. 1080 (SDNY 1975). Then in Mitchell v. National Broadcasting Co., 553 F.2d 265 (1977), the Second Circuit ruled, over a strong dissent, that a state court affirmance of a state agency decision barred a subsequent civil rights suit under 42 U.S.C. § 1981. Later, in a brief per curiam decision, Sinicropi v. Nassau County, 601 F.2d 60, cert. denied, 444 U.S. 983, 100 S.Ct. 488, 62 L.Ed.2d 411 (1979), the Circuit concluded that Mitchell dictated the same res judicata result for Title VII, despite the significant differences between § 1981 and the complex structure of Title VII, which expressly addresses the role of state proceedings in the resolution of discrimination claims. The District Judge in this case appropriately felt himself bound by Sinicropi, but he wrote a persuasive opinion questioning its wisdom. 477 F.Supp. 587, 591-594 (SDNY 1979). On appeal, a panel of the Second Circuit also found the outcome in this case dictated by Sinicropi. 623 F.2d 786 (1980). Two judges of that court voted for rehearing en banc. App. 80. 2 Unger v. Consolidated Foods Corp., 657 F.2d 909, 914, n. 5 (CA7 1981). All other Courts of Appeals that have considered the issue have disagreed with the Second Circuit. In addition to Unger, see Smouse v. General Electric Co., 626 F.2d 333, 336 (CA3 1980) (expressly rejecting Sinicropi ); Gunther v. Iowa State Men's Reformatory, 612 F.2d 1079, 1084 (CA8) ("questioning" Sinicropi ), cert. denied, 446 U.S. 966, 100 S.Ct. 2942, 64 L.Ed.2d 825 (1980). See also Aleem v. General Felt Industries, Inc., 661 F.2d 135, 137 (CA9 1981) ("Sinicropi is inconsistent with the Supreme Court's decision in Alexander [v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) ]"). Commentators, too, agree that the Second Circuit's rule is ill-conceived. See Note, Res Judicata in Successive Employment Discrimination Suits, 1980 U.Ill.Law Forum 1049, 1099; Comment, 15 Harv.Civ.Rights-Civ.Lib.L.Rev. 29, 266-276 (1980) (criticizing application of Second Circuit's rule to 42 U.S.C. § 1981); Comment, 31 Rutgers L.Rev. 973 (1979) (same); Comment, 6 Ford. Urban L.J. 481, 492-494 (1978) (same); Comment, 62 Minn.L.Rev. 987 (1978); Note, 53 N.Y.U.L.Rev. 187 (1978). See also Jackson, Matheson, & Piskorski, The Proper Role of Res Judicata and Collateral Estoppel in Title VII Suits, 79 Mich.L.Rev. 1485, 1519-1520 (1981) (rejecting application of res judicata when, as in this case, the state court affirms a state agency finding of no probable cause); Comment, 30 Vand.L.Rev. 1260 (1977); Richards, Alexander v. Gardner-Denver: A Threat to Title VII Rights, 29 Ark.L.Rev. 129, 158 (1975) (interpreting Title VII contrary to Second Circuit's decisions, but before the relevant Second Circuit cases were decided). 3 See also § 706(f)(1) (permitting the district court to stay a Title VII suit for not more than 60 days pending termination of "State or local proceedings," without suggesting that the termination would bar further district court proceedings). 4 By indicating that final decisions in state proceedings have no preclusive effect on the EEOC, Congress also indicated that final decisions in state proceedings do not preclude a subsequent Title VII suit in federal court. "It would be meaningless for Congress to set up standards for E. E. O. C. examination of cases after determinations were made in state proceedings if Congress intended that those cases be barred from consideration in federal court," because the EEOC, "which lacks enforcement power, would be attempting to mediate with defendants who were already protected from any further legal action." Batiste v. Furnco Constr. Corp., 503 F.2d 447, 450, n. 1 (CA7 1974), cert. denied, 420 U.S. 928, 95 S.Ct. 1127, 43 L.Ed.2d 399 (1975). 5 Congress simply would have inserted the words "preclusive effect" instead of "substantial weight." The legislative history of the "substantial weight" amendment indicates that Congress intended for the EEOC to refrain only from overturning state decisions "peremptorily" and for the EEOC simply to give them "due respect." 118 Cong.Rec. 310 (1972) (remarks of Sen. Ervin). 6 The Court observes that this section does not address the issue of the proper weight to be afforded state decisions. See ante, at 471, n. 8. It is true that § 706(c) does not specify the precise amount of deference due a state decision. But by permitting a complainant to file charges with the EEOC and ultimately to bring suit despite the termination of state proceedings, § 706(c) does provide that the termination of state proceedings will not have preclusive effect. Section 706(f)(1) follows the same path. It permits the federal court to stay a Title VII suit pending termination of state "proceedings," without suggesting that the termination of state proceedings will preclude further action in the Title VII suit. 7 Sections 297-a(7)(d) and (e) describe the scope of review by the New York Human Rights Appeal Board. Those standards also apply to review by the New York courts of NYHRD decisions. See Mize v. State Division of Human Rights, 33 N.Y.2d 53, 57, 349 N.Y.S.2d 364, 366, 304 N.E.2d 231, 233 (1973); N.Y.Civ.Prac. Law § 7803 (McKinney 1981); Gabrielli & Nonna, Judicial Review of Administrative Action in New York: An Overview and Survey, 52 St. John's L.Rev. 361, 369-373 (1978). 8 Despite these express statutory provisions and explanations from New York's highest courts, this Court seems to insist that New York courts pass upon the merits of a complainant's discrimination claim. See ante, at 480-481, n. 21. If this is the basis for the Court's decision giving the New York court's ruling preclusive effect, then today's decision is much less important than some might think at first glance. If a state court in fact adheres to a pure arbitrary and capricious standard, the Court might not grant such a state court decision preclusive effect. On the other hand, the Court may be stating only that use of an arbitrary and capricious standard involves some examination of the merits, because the reviewing court must look at the evidence to determine if the agency acted in an arbitrary fashion. If this is the gist of the Court's argument, the Court advances its case very little. When a court reviews an agency record under a deferential standard of review, the agency, not the court, decides the merits of the claim. The Court states that "[t]here is no requirement that judicial review must proceed de novo if it is to be preclusive." Ante, at 481, n. 21. Whether that conclusion is correct in the usual case or not, it certainly cannot stand in the context of Title VII. As the Court itself holds, Congress expressly intended that a state agency's determination would not bar a Title VII suit. When the state court does not conduct a de novo review, it accepts the determination of the state agency. When the Court gives such a state court affirmance preclusive effect, it thereby forecloses a Title VII suit based on a state agency's resolution of the complainant's discrimination charge—a result that Title VII condemns. 9 The primacy of the state agency's decision is underscored by the source of the preclusion rule upon which the Court relies. To determine the preclusive effect the state court affirmance would have in the New York courts, the Court quotes N.Y.Exec. Law § 300 (McKinney 1972). Ante, at 467. But § 300 makes no reference to state court decisions; it prevents state suit after a final decision in any proceeding brought before the NYHRD. Thus, for the purposes of state preclusion, a state court affirmance of the state agency's final decision is mere happenstance. 10 One reason for the Court's decision is its fear that a state court affirmance of a state agency decision cannot be distinguished from a full state court trial of a discrimination claim. See ante, at 469-470. This fear is unfounded. When Congress permitted a complainant to bring a Title VII suit despite the termination of his state proceedings, it had proceedings connected with state antidiscrimination agencies clearly in mind. See §§ 706(c) and 709(b). Thus, the Court easily could hold that Congress referred to state administrative processing of discrimination claims, including judicial review of agency decisions, when it referred to "proceedings" in §§ 706(b) and (c), and, at the same time, could refuse to hold that Congress intended to include a state court trial on the merits of the complainant's claim within the term "proceedings." Such a decision would be buttressed by the fact that the procedures available in state court closely approximate those available in federal court. Moreover, the policies favoring preclusion under 28 U.S.C. § 1738 would be considerably stronger if the merits of the discrimination claim had been settled by the state court itself. The Fourth Circuit recently had no difficulty distinguishing a state court trial on a discrimination claim from a state court affirmance of a state agency's determination. Moosavi v. Fairfax County Bd. of Educ., 666 F.2d 58 (1981). 11 The Court is quite correct in holding that a state decision must satisfy at least due process before it can be given preclusive effect in the federal courts. Indeed, this aspect of the Court's decision follows directly from our decision earlier this term in Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). 12 The Clark-Case memorandum is a particularly authoritative source for determining the congressional intent behind Title VII. See Teamsters v. United States, 431 U.S. 324, 350-352, and 351, n. 35, 97 S.Ct. 1843, 1862-63, and 1862, n. 35, 52 L.Ed.2d 396 (1977). 13 The Court also cites legislative materials indicating that congressional defenders of employers and unions preferred trial de novo in federal court over conclusive administrative proceedings before the EEOC. See ante, at 473-475. But the Court focuses on the wrong choice. The question is not why Congress chose federal trial de novo over conclusive EEOC proceedings, but why Congress chose to provide a federal remedy rather than relying on state remedies. The reason is that Congress wanted to provide a federal remedy, whether before a federal court or the EEOC, separate from and independent of the antidiscrimination procedures afforded by the States. Furthermore, the Court's decision is contrary to its own reading of the legislative history. Presumably, if the complainant prevails before the state agency and also before the state courts, the Court would give that decision in his favor preclusive effect. Thus, if state law provides the complainant with an inadequate remedy, evidently he will be able to bring a Title VII suit in federal court asserting the state decision as res judicata on the issue of the employer's liability. Yet the Court insists that Congress intended that employers not be bound by administrative findings but instead intended that employers have the protection of a trial de novo in federal court. Ibid.. 14 The Court finds it significant that Senator Javits referred to New York state administrative proceedings during his remarks. Ante, at 475-476, n. 17. But Senator Javits cited New York proceedings only to show that businessmen had not been subject to harassment through discrimination complaints; he did not mention state proceedings during his discussion of res judicata. See 118 Cong.Rec. 3370 (1972). Furthermore, when Senator Javits discussed res judicata, he spoke of litigation instigated by the EEOC, the Attorney General, and an individual. See ante, at 475. Thus, Senator Javits was addressing only federal proceedings; he was not suggesting that the outcome of state proceedings might have res judicata effect. The EEOC and the Attorney General of the United States obviously do not participate in proceedings before the New York state agency. 15 Since Senator Javits specifically mentioned successive suits brought by the EEOC, the Attorney General, and an individual, see ibid., he may have been referring only to successive suits brought under Title VII. See also 118 Cong.Rec. 3371-3372 (1972) (remarks of Sen. Williams) (rejecting Hruska amendment and insisting that 42 U.S.C. § 1981 and Title VII should not be mutually exclusive). 16 The Court quotes Senator Williams' statement that "the individual claimant should [not] be allowed to litigate his claim to completion in one forum, and then if dissatisfied, go to another forum to try again." 118 Cong.Rec. 3372 (1972). See ante, at 476. But the Court fails to quote Senator Williams' immediately succeeding statement: "I do feel that where one form of relief proves unresponsive or impractical, . . . [the complainant] should have that right." 118 Cong.Rec. 3372 (1972). Indeed, the feared unresponsiveness of some state agencies was a principal reason for the enactment of Title VII. See 110 Cong.Rec. 7214 (1964); Alexander v. Gardner-Denver Co., 415 U.S. 36, 48, n. 9, 94 S.Ct. 1011, 1019, n. 9, 39 L.Ed.2d 147 (1974). 17 This reading of the statute is fully supported by the original legislative history of Title VII. In 1964, Senator Tower offered an amendment similar to Senator Hruska's 1972 amendment, making Title VII the exclusive federal employment discrimination remedy. 110 Cong.Rec. 13650 (1964). Like Senator Hruska's amendment, Senator Tower's made an exception for state proceedings. Ibid. There was no mention of res judicata during the debates, see id., at 13650-13652, and the Senate rejected the amendment by a vote of 29 to 59. Id., at 13652. 18 Indeed, a prudent discrimination complainant may make every effort to prevent the state agency from reaching a final decision. If the complainant prevails after a full hearing, he runs the risk that his adversary may seek judicial review. He could then find himself closed out of federal court if a state court decides that the agency's decision is unsupported by sufficient evidence. See Gunther v. Iowa State Men's Reformatory, 612 F.2d, at 1084. In some future case, the Court may find such a result inimical to Title VII but, given today's decision, no complainant could safely predict that the Court would not apply § 1738. For a complainant with some evidence to support his claim, the wiser course might well be to thwart all state proceedings and wait for EEOC attempts at conciliation and the full procedural advantages of federal court adjudication. 19 The Court's response to this is unconvincing. The Court argues that, if it does not give the state court affirmance preclusive effect, it will "lesse[n] the incentive for full participation by the parties and for searching review by state officials." Ante, at 478. It is difficult to see how this result will come about, when a complainant can win a ruling in his favor if he succeeds on judicial review and when his adversary risks losing the state court judgment if he does not rebut the complainant's arguments. Moreover, the parties will have another incentive to litigate vigorously during state judicial review, because no one disputes that state court affirmances "may be admitted as evidence and accorded such weight as the [federal] court deems appropriate." Alexander v. Gardner-Denver Co., 415 U.S., at 60, 94 S.Ct., at 1025, that is, "substantial weight," see § 706(b). The Court also insists that a reversal in this case would "reduce the incentive for States to work towards effective and meaningful antidiscrimination systems." Ante, at 478. This fact will undoubtedly surprise state officials in the 47 States outside the Second Circuit—States which have not been governed by the preclusion rule currently followed only in that Circuit. See n. 2, supra. These state officials unquestionably recognize, as did Congress when it passed Title VII, that state procedures can provide efficient dispute resolution, even if the possibility of a subsequent Title VII suit exists. In any event, the Court hardly increases the quality of state decisionmaking when it effectively writes the state courts out of a large number of administrative cases. 20 Thus, when the Court labels this line of reasoning "dubious," see ante, at 478, n. 19, it is doubting not only the logic of this dissent, but also the logic of two prior decisions of this Court. In addition, it seems unlikely that many discrimination complainants will find the "delay," see ante, at 479, n. 19, of a Title VII suit a measurable burden when they take into account the procedural advantages of federal court litigation as compared with state judicial review of agency decisions. The Court also questions whether the state decisionmaking process will improve through practice. See ante, at 478-479, n. 19. Although some might argue the point, it seems that state agencies will be more careful if their decisions are subject to state court review and that state decision-makers will learn from experience. But even if the quality of state decisionmaking does not decline as fewer complainants seek state judicial review, a reduction in the number of discrimination cases handled by state courts obviously carries with it a reduction in the role of state authorities in resolving discrimination charges. This result is directly contrary to the congressional intent. 21 See Alexander v. Gardner-Denver Co., 415 U.S., at 57-58, 94 S.Ct., at 1024 (concluding that the informal procedures used during arbitration "mak[e] arbitration a less appropriate forum for final resolution of Title VII issues than the federal courts"). 22 Bonfield, An Institutional Analysis of the Agencies Administering Fair Employment Practices Laws (Part II), 42 N.Y.U.L.Rev. 1035, 1048-1049 (1967). "[T]he vagueness of the probable cause concept makes it a flexible tool in the hands of a commissioner"; "[b]y tightening it he can cut the Agency's caseload, perhaps to allow the Agency to devote its resources to cases that may be expected to produce a higher return in terms of job opportunities, or perhaps only to disguise his own personal timidity." Note, The California FEPC: Stepchild of the State Agencies, 18 Stan.L.Rev. 187, 191 (1965). The risk is heightened by the fact that the complainant evidently must present more proof to establish probable cause than to survive a summary judgment motion in federal court. Probable cause exists when there is "reasonable ground of suspicion supported by facts and circumstances strong enough in themselves to warrant a cautious man in the belief that the law is being violated." See Goldberg v. State Commission for Human Rights, 54 Misc.2d 676, 680, 283 N.Y.S.2d 347, 352 (1966). 23 There is one final irony in the Court's decision. While the Court holds that a New York court's affirmance of an adverse state agency decision precludes a complainant from bringing a federal Title VII suit, a New York court has held that an unsuccessful Title VII suit in federal court does not preclude a proceeding before the NYHRD. State Division of Human Rights v. County of Monroe, 88 Misc.2d 16, 386 N.Y.S.2d 317 (1976). Citing Alexander v. Gardner-Denver Co., supra, the court noted that "dual or overlapping remedies were contemplated and expressly intended by Congress in Title VII," 88 Misc.2d, at 19, 386 N.Y.S.2d, at 320, and held that "neither res judicata nor collateral estoppel applies," id., at 20, 386 N.Y.S.2d, at 321. * In the two cases cited in Flah's Inc. v. Schneider, 71 A.D.2d 993, 420 N.Y.S.2d 283 (1979), the Appellate Division had developed the standard for reviewing agency dismissals for lack of probable cause. According to Mayo v. Hopeman Lumber & Mfg. Co., 33 A.D.2d 310, 307 N.Y.S.2d 691, motion for leave to appeal dism'd, 26 N.Y.2d 962, 311 N.Y.S.2d 5, 259 N.E.2d 477 (1970), the test is whether the agency determination "was arbitrary, capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion." 33 A.D.2d, at 313, 307 N.Y.S.2d, at 694 (paraphrasing N.Y.Exec. Law § 297-a(7)(e) (McKinney 1972)). The Appellate Division observed that "[f]or the [Division of Human Rights] to dismiss his complaint under such circumstances it must appear virtually that as a matter of law the complaint lacks merit." 33 A.D.2d, at 313, 307 N.Y.S.2d, at 695. In State Div. of Human Rights v. New York State Drug Abuse Control Comm'n, 59 A.D.2d 332, 399 N.Y.S.2d 541 (1977), the Division of Human Rights had dismissed the complaint after an investigation but without a hearing. The Appeal Board had reversed and remanded for further proceedings. In sustaining the Human Rights Division, the Appellate Division clarified its holding in Mayo : "In [Mayo ] it was not our intention to deprive the commissioner [of the Division of Human Rights] of his statutory duty to [determine whether there is a reasonable basis for sustaining the complaint, based upon complainant's evidence, and for requiring the employer to answer and submit to a hearing]. Thus, after the commissioner has made a full investigation, wherein the complainant has had full opportunity to present his evidence and exhibits, under oath if he so requests, if the commissioner determines that complainant has not shown probable cause for his complaint, the appeal board has no authority to reverse such determination and order a [hearing], provided that the commissioner's determination is rationally supported by the record before him." Id., at 336-337, 399 N.Y.S.2d, at 544 (citations omitted). These cases demonstrate that the issue before a New York court reviewing an agency dismissal of a discrimination complaint is not the equivalent of the merits issue in a Title VII action. The Court's citations to New York cases, ante, at 480-481, n. 21, simply do not support the general proposition that a New York court's affirmance of an agency's dismissal of a complaint necessarily determines that the complaint lacked merit as a matter of law. It is true that some of those cases contain language similar to the observation in Mayo that the agency may summarily dismiss a complaint only if it appears "virtually that as a matter of law the complaint lacks merit." As in Mayo, however, other language in those cases refutes the notion that only complaints meritless as a matter of law are permitted to be dismissed without hearings by the agency. See, e.g., New York State Division for Youth v. State Human Rights Appeal Board, 83 A.D.2d 972, 973, 442 N.Y.S.2d 813, 814 (1981) ("We conclude that here, absent a full investigation including an opportunity for confrontation, the determination of the division was based on a record which was inadequate to meet the test of substantial evidence and was, therefore, arbitrary and capricious"); State Division of Human Rights v. Blanchette, 73 A.D.2d 820, 821, 423 N.Y.S.2d 745 (1979) ("After the State Division of Human Rights has conducted an investigation of a complaint, with full opportunity to the complainant to support his or her claims of discrimination, the Division's determination of no probable cause and dismissal of the complaint may not be vacated by the Appeal Board or the court if it is supported by substantial evidence"). The facts of the cases also demonstrate that allegations that clearly state a cause of action are not necessarily sufficient to avoid dismissal without a hearing. See, e.g., Stasiak v. Montgomery Ward & Co., 66 A.D.2d 962, 411 N.Y.S.2d 700 (1978). Moreover, it is perfectly clear that the New York courts do not reach an independent conclusion on the merits of a discrimination claim that has been adjudicated against the claimant by the agency after a formal hearing.

12

456 U.S. 595 102 S.Ct. 1957 72 L.Ed.2d 358 UNITED STATES DEPARTMENT OF STATE, et al., Petitionersv.The WASHINGTON POST COMPANY. No. 81-535. Argued March 31, 1982. Decided May 17, 1982. Syllabus Respondent filed a request with petitioner United States Department of State under the Freedom of Information Act for documents indicating whether certain Iranian nationals held valid United States passports. The State Department denied the request on the ground that the requested information was exempt from disclosure under Exemption 6 of the Act, which provides that the Act's disclosure requirements do not apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Pending an ultimately unsuccessful administrative appeal, respondent brought an action in Federal District Court to enjoin petitioners from withholding the requested documents, and the court granted summary judgment for respondent. The Court of Appeals affirmed, holding that because the citizenship status of the individuals in question was less intimate than information normally contained in personnel and medical files, it was not contained in "similar files" within the meaning of Exemption 6, and that therefore there was no need to consider whether disclosure of the information would constitute a clearly unwarranted invasion of personal privacy. Held: The citizenship information sought by respondent satisfies the "similar files" requirement of Exemption 6, and hence the State Department's denial of the request should have been sustained upon a showing that release of the information would constitute a clearly unwarranted invasion of personal privacy. Although Exemption 6's language sheds little light on what Congress meant by "similar files," the legislative history indicates that Congress did not mean to limit Exemption 6 to a narrow class of files containing only a discrete kind of personal information, but that "similar files" was to have a broad, rather than a narrow, meaning. Exemption 6's protection is not determined merely by the nature of the file containing the requested information, and its protection is not lost merely because an agency stores information about an individual in records other than "personnel" or "medical" files. Pp. 599-603. 207 U.S.App.D.C. 372, 647 F.2d 197, reversed and remanded. Kenneth S. Geller, Washington, D.C., for petitioners. David E. Kendall, Washington, D.C., for respondent. Justice REHNQUIST delivered the opinion of the Court. 1 In September 1979, respondent Washington Post Co. filed a request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, requesting certain documents from petitioner United States Department of State. The subject of the request was defined as "documents indicating whether Dr. Ali Behzadnia and Dr. Ibrahim Yazdi . . . hold valid U. S. passports." App. 8. The request indicated that respondent would "accept any record held by the Passport Office indicating whether either of these persons is an American citizen." Ibid. At the time of the request, both Behzadnia and Yazdi were Iranian nationals living in Iran. 2 The State Department denied respondent's request the following month, stating that release of the requested information "would be 'a clearly unwarranted invasion of [the] personal privacy' of these persons," id., at 14 (quoting 5 U.S.C. § 552(b)(6)), and therefore was exempt from disclosure under Exemption 6 of the FOIA.1 Denial of respondent's request was affirmed on appeal by the Department's Council on Classification Policy, which concluded that "the privacy interests to be protected are not incidental ones, but rather are such that they clearly outweigh any public interests which might be served by release of the requested information." Id., at 22-23. 3 While pursuing the administrative appeal, respondent brought an action in the United States District Court for the District of Columbia to enjoin petitioners from withholding the requested documents. Both sides filed affidavits and motions for summary judgment. Petitioners' affidavit, from the Assistant Secretary of State for Near Eastern and South Asian Affairs, explained that both Behzadnia and Yazdi were prominent figures in Iran's Revolutionary Government and that compliance with respondent's request would "cause a real threat of physical harm" to both men.2 The District Court nonetheless granted respondent's motion for summary judgment. 4 Petitioners appealed, and the Court of Appeals for the District of Columbia Circuit affirmed. 207 U.S.App.D.C. 372, 647 F.2d 197 (1981). As construed by the Court of Appeals, Exemption 6 permits the withholding of information only when two requirements have been met: first, the information must be contained in personnel, medical, or "similar" files, and second, the information must be of such a nature that its disclosure would constitute a clearly unwarranted invasion of personal privacy. Id., at 373, 647 F.2d, at 198. Petitioners argued that the first requirement was satisfied because the information sought by respondent was contained in "similar files." The Court of Appeals disagreed, holding that the phrase "similar files" applies only to those records which contain information " ' "of the same magnitude as highly personal or as intimate in nature—as that at stake in personnel and medical records." ' " Id., at 373-374, 647 F.2d, at 198-199 (quoting Simpson v. Vance, 208 U.S.App.D.C. 270, 273, 648 F.2d 10, 13 (1980), in turn quoting Board of Trade v. Commodity Futures Trading Comm'n, 200 U.S.App.D.C. 339, 345, 627 F.2d 392, 398 (1980)). Because it found the citizenship status of Behzadnia and Yazdi to be less intimate than information normally contained in personnel and medical files, the Court of Appeals held that it was not contained in "similar files." Therefore, the Court of Appeals reasoned, there was no need to consider whether disclosure of the information would constitute a clearly unwarranted invasion of personal privacy; having failed to meet the first requirement of Exemption 6, the information had to be disclosed under the mandate of the FOIA. We granted certiorari, 454 U.S. 1030, 102 S.Ct. 565, 70 L.Ed.2d 473 (1981), to review the Court of Appeals' construction of the "similar files" language, and we now reverse. 5 The language of Exemption 6 sheds little light on what Congress meant by "similar files." Fortunately, the legislative history is somewhat more illuminating. The House and Senate Reports, although not defining the phrase "similar files," suggest that Congress' primary purpose in enacting Exemption 6 was to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information. After referring to the "great quantities of [Federal Government] files containing intimate details about millions of citizens," the House Report explains that the exemption is "general" in nature and seeks to protect individuals: 6 "A general exemption for [this] category of information is much more practical than separate statutes protecting each type of personal record. The limitation of a 'clearly unwarranted invasion of personal privacy' provides a proper balance between the protection of an individual's right of privacy and the preservation of the public's right to Government information by excluding those kinds of files the disclosure of which might harm the individual." H.R.Rep.No.1497, 89th Cong., 2nd Sess., 11 (1966), U.S.Code Cong. & Admin.News 1966, pp. 2418, 2428 (emphasis added). 7 Similarly, the Senate Judiciary Committee reached a "consensus that these [personal] files should not be opened to the public, and . . . decided upon a general exemption rather than a number of specific statutory authorizations for various agencies." S.Rep.No.813, 89th Cong., 1st Sess., 9 (1965) (emphasis added). The Committee concluded that the balancing of private against public interests, not the nature of the files in which the information was contained, should limit the scope of the exemption: "It is believed that the scope of the exemption is held within bounds by the use of the limitation of 'a clearly unwarranted invasion of personal privacy.' " Ibid. Thus, "the primary concern of Congress in drafting Exemption 6 was to provide for the confidentiality of personal matters." Department of Air Force v. Rose, 425 U.S. 352, 375, n. 14, 96 S.Ct. 1592, 1605, n. 14, 48 L.Ed.2d 11 (1976). 8 Respondent relies upon passing references in the legislative history to argue that the phrase "similar files" does not include all files which contain information about particular individuals, but instead is limited to files containing "intimate details" and "highly personal" information. See H.R.Rep.No.1497, supra, at 11; S.Rep.No.813, supra, at 9. We disagree. Passing references and isolated phrases are not controlling when analyzing a legislative history. Congress' statements that it was creating a "general exemption" for information contained in "great quantities of files," H.R.Rep.No.1497, supra, at 11, suggest that the phrase "similar files" was to have a broad, rather than a narrow, meaning. This impression is confirmed by the frequent characterization of the "clearly unwarranted invasion of personal privacy" language as a "limitation" which holds Exemption 6 "within bounds." S.Rep.No.813, supra, at 9. See also, H.R.Rep.No.1497, supra, at 11; S.Rep.No.1219, 88th Cong., 2d Sess., 14 (1964). Had the words "similar files" been intended to be only a narrow addition to "personnel and medical files," there would seem to be no reason for concern about the exemption's being "held within bounds," and there surely would be clear suggestions in the legislative history that such a narrow meaning was intended. We have found none. 9 A proper analysis of the exemption must also take into account the fact that "personnel and medical files," the two benchmarks for measuring the term "similar files," are likely to contain much information about a particular individual that is not intimate. Information such as place of birth, date of birth, date of marriage, employment history, and comparable data is not normally regarded as highly personal, and yet respondent does not disagree that such information, if contained in a "personnel" or "medical" file, would be exempt from any disclosure that would constitute a clearly unwarranted invasion of personal privacy. The passport information here requested, if it exists, presumably would be found in files containing much of the same kind of information. Such files would contain at least the information that normally is required from a passport applicant. See 22 U.S.C. § 213. It strains the normal meaning of the word to say that such files are not "similar" to personnel or medical files. 10 We agree with petitioners' argument that adoption of respondent's limited view of Exemption 6 would produce anomalous results. Under the plain language of the exemption, nonintimate information about a particular individual which happens to be contained in a personnel or medical file can be withheld if its release would constitute a clearly unwarranted invasion of personal privacy. And yet under respondent's view of the exemption, the very same information, being non-intimate and therefore not within the "similar files" language, would be subject to mandatory disclosure if it happened to be contained in records other than personnel or medical files. "[T]he protection of an individual's right of privacy" which Congress sought to achieve by preventing "the disclosure of [information] which might harm the individual," H.R.Rep.No.1497, supra, at 11, U.S.Code Cong. & Admin.News 1966, p. 2428, surely was not intended to turn upon the label of the file which contains the damaging information. In Department of Air Force v. Rose, supra, at 372, 96 S.Ct., at 1604, we recognized that the protection of Exemption 6 is not determined merely by the nature of the file in which the requested information is contained: 11 "Congressional concern for the protection of the kind of confidential personal data usually included in a personnel file is abundantly clear. But Congress also made clear that nonconfidential matter was not to be insulated from disclosure merely because it was stored by an agency in its 'personnel' files." 12 By the same reasoning, information about an individual should not lose the protection of Exemption 6 merely because it is stored by an agency in records other than "personnel" or "medical" files. 13 In sum, we do not think that Congress meant to limit Exemption 6 to a narrow class of files containing only a discrete kind of personal information. Rather, "[t]he exemption [was] intended to cover detailed Government records on an individual which can be identified as applying to that individual." H.R.Rep.No.1497, supra, at 11, U.S.Code Cong. & Admin.News 1966, p. 2428.3 When disclosure of information which applies to a particular individual is sought from Government records, courts must determine whether release of the information would constitute a clearly unwarranted invasion of that person's privacy.4 14 The citizenship information sought by respondent satisfies the "similar files" requirement of Exemption 6, and petitioners' denial of the request should have been sustained upon a showing by the Government that release of the information would constitute a clearly unwarranted invasion of personal privacy.5 The Court of Appeals expressly declined to consider the effect of disclosure upon the privacy interests of Behzadnia and Yazdi, and we think that such balancing should be left to the Court of Appeals or to the District Court on remand. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. 15 It is so ordered. Justice O'CONNOR concurs in the judgment 1 Exemption 6 provides that the disclosure requirements of the FOIA do not apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). 2 Petitioners' original affidavit stated: "There is intense anti-American sentiment in Iran and several Iranian revolutionary leaders have been strongly criticized in the press for their alleged ties to the United States. Any individual in Iran who is suspected of being an American citizen or of having American connections is looked upon with mistrust. An official of the Government of Iran who is reputed to be an American citizen would, in my opinion, be in physical danger from some of the revolutionary groups that are prone to violence. * * * * * "It is the position of the Department of State that any statement at this time by the United States Government which could be construed or misconstrued to indicate that any Iranian public official is currently a United States citizen is likely to cause a real threat of physical harm to that person." Affidavit of Harold H. Saunders, Jan. 14, 1980, App. 17. The affidavit reported that Yazdi, who had previously held the position of Foreign Minister, was currently a member of the Revolutionary Council and was responsible for solving problems in various regions of Iran. It also indicated that Behzadnia had been a senior official in the Ministry of National Guidance, but that the State Department had not received any report of his activities in recent weeks. Ibid. A supplemental affidavit, executed three months after the first affidavit, stated that Yazdi had been elected to the Iranian National Assembly, but that the activities of Behzadnia were still unreported. Supplemental Affidavit of Harold H. Saunders, Apr. 22, 1980, App. 41. 3 This view of Exemption 6 was adopted by the Attorney General shortly after enactment of the FOIA in a memorandum explaining the meaning of the Act to various federal agencies: "It is apparent that the exemption is intended to exclude from the disclosure requirements all personnel and medical files, and all private or personal information contained in other files which, if disclosed to the public, would amount to a clearly unwarranted invasion of the privacy of any person." Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act 36 (June 1967) (emphasis added). 4 This construction of Exemption 6 will not render meaningless the threshold requirement that information be contained in personnel, medical, and similar files by reducing it to a test which fails to screen out any information that will not be screened out by the balancing of private against public interests. As petitioners point out, there are undoubtedly many Government files which contain information not personal to any particular individual, the disclosure of which would nonetheless cause embarrassment to certain persons. Information unrelated to any particular person presumably would not satisfy the threshold test. 5 In holding that "similar files" are limited to those containing intimate details about individuals such as might also be contained in personnel or medical files, the Court of Appeals relied on its decision in Simpson v. Vance, 208 U.S.App.D.C. 270, 648 F.2d 10 (1980). In Simpson, the Court of Appeals held that portions of the State Department's Biographical Register could not be considered a "similar file" because such information was currently available to the public. Id., at 275, 648 F.2d, at 15. At the same time, Simpson held that release of information pertaining to an individual's marital status and the name of the individual's spouse "would not be appropriate." Id., at 277, 648 F.2d, at 17. Respondent contends that information concerning the citizenship of Behzadnia and Yazdi likewise cannot be withheld as contained in "similar files" because United States citizenship is a matter of public record. Even under the Court of Appeals' holding in Simpson, however, the fact that citizenship is a matter of public record somewhere in the Nation cannot be decisive, since it would seem almost certain that the information concerning marital status that was withheld in Simpson would likewise be contained in public records. In addition, "personnel" files, which expressly come within Exemption 6, are likely to contain much information that is equally a matter of public record. Place of birth, date of birth, marital status, past criminal convictions, and acquisition of citizenship are some examples. The public nature of information may be a reason to conclude, under all the circumstances of a given case, that the release of such information would not constitute a "clearly unwarranted invasion of personal privacy," but it does not militate against a conclusion that files are "similar" to personnel and medical files..

45

72 L.Ed.2d 330 102 S.Ct. 1935 456 U.S. 556 AMERICAN SOCIETY OF MECHANICAL ENGINEERS, INC., Petitionerv.HYDROLEVEL CORPORATION. No. 80-1765. Argued Jan. 13, 1982. Decided May 17, 1982. Rehearing Denied June 28, 1982. See 458 U.S. 1116, 102 S.Ct. 3502. Syllabus Petitioner, a nonprofit membership corporation with over 90,000 members drawn from all fields of mechanical engineering, promulgates codes for areas of engineering and industry. Much of its work is done through volunteers from industry and government. The codes, while only advisory, have a powerful economic influence, many of them being incorporated by reference in federal regulations and state and local laws. Respondent marketed a safety device for use in water boilers and secured a customer that previously had purchased the competing product of McDonnell & Miller, Inc. (M&M). One of M&M's officials, a vice president (James), was vice chairman of petitioner's subcommittee that drafted, revised, and interpreted the segment of petitioner's code governing the safety device in question. Subsequently he and other M&M officials met with the subcommittee's chairman (Hardin). As a result, M&M sent a letter to petitioner asking whether a safety device with a feature such as one contained in respondent's device satisfied the pertinent code requirements. The letter was referred to Hardin, as chairman of the subcommittee, and ultimately an "unofficial response" was issued, prepared by Hardin but mailed on petitioner's stationery over the signature of one of petitioner's full-time employees. The response in effect declared respondent's product unsafe. Thereafter, M&M's salesmen used the subcommittee's response to discourage customers from buying respondent's product. Respondent subsequently sought a correction from petitioner of the unofficial response; respondent continued to suffer market resistance after the pertinent committee replied. After James' part in the drafting of the original letter of inquiry became public, respondent filed suit in Federal District Court against petitioner (and others who settled), alleging violation of the Sherman Act. The trial court rejected respondent's request for jury instructions that petitioner could be held liable for its agents' conduct if they acted within the scope of their apparent authority. Instead, the jury was instructed that petitioner could be held liable only if it had ratified its agents' actions or if the agents had acted in pursuit of petitioner's interests. The jury, nonetheless, returned a verdict for respondent. The Court of Appeals affirmed, concluding that petitioner could be held liable if its agents had acted within the scope of their apparent authority, and that thus the charge was more favorable to petitioner than the law required. Held : Petitioner is civilly liable under the antitrust laws for the antitrust violations of its agents committed with apparent authority. Pp. 565-576. (a) Under general rules of agency law, principals are liable when their agents act with apparent authority and commit torts analogous to the antitrust violation presented here. An agent who appears to have authority to make statements for his principal gives to his statements the weight of the principal's reputation in this case, the weight of petitioner's acknowledged expertise in boiler safety. Pp. 565-570. (b) Petitioner's liability under a theory of apparent authority is consistent with the congressional intent behind the antitrust laws to encourage competition. Petitioner wields great power in the Nation's economy, and when it cloaks its subcommittee officials with the authority of its reputation, it permits those agents to affect the destinies of businesses and thus gives them the power—as illustrated by the facts of this case—to frustrate competition in the marketplace. A rule that imposes liability on the standard-setting organization—which is best situated to prevent antitrust violations through the abuse of its reputation is most faithful to the congressional intent that the private right of action deter antitrust violations. On the other hand, a ratification rule would have anticompetitive effects, encouraging petitioner to do as little as possible to oversee its agents since it could avoid liability by ensuring that it remained ignorant of its agents' conduct. And a rule whereby petitioner would not be liable unless its agents acted with an intent to benefit petitioner would be irrelevant to the antitrust laws' purposes. The anticompetitive practices of petitioner's agents are repugnant to the antitrust laws even if the agents act without any intent to aid petitioner, and petitioner should be encouraged to eliminate the anticompetitive practices of all its agents acting with apparent authority, especially those who use their positions in petitioner solely for their own benefit or the benefit of their employers. Pp. 570-574. (c) Application of the theory of apparent authority is not improper on the asserted ground that treble damages for antitrust violations are punitive and that under traditional agency law the courts do not employ apparent authority to impose punitive damages upon a principal for the acts of its agents. Since treble damages also serve as a means of deterring antitrust violations and of compensating victims, it is in accord with both the purposes of the antitrust laws and principles of agency law to hold petitioner liable for the acts of agents committed with apparent authority. Nor does the fact that petitioner is a nonprofit organization weaken the force of the antitrust and agency principles that indicate that it should be liable for respondent's antitrust injuries. Pp. 574-576. 635 F.2d 118, affirmed. Harold R. Tyler, Jr., New York City, for petitioner. Carl W. Schwarz, Washington, D. C., for respondent. Stephen M. Shapiro, Washington, D. C., for United States as amicus curiae, by special leave of Court. Justice BLACKMUN delivered the opinion of the Court. 1 Petitioner, the American Society of Mechanical Engineers, Inc. (ASME), is a nonprofit membership corporation organized in 1880 under the laws of the State of New York. This case presents the important issue of the Society's civil liability under the antitrust laws for acts of its agents performed with apparent authority. Because the judgment of the Court of Appeals upholding civil liability is consistent with the central purposes of the antitrust laws, we affirm that judgment. 2 * ASME has over 90,000 members drawn from all fields of mechanical engineering. It has an annual operating budget of over $12 million. It employs a full-time staff, but much of its work is done through volunteers from industry and government. The Society engages in a number of activities, such as publishing a mechanical engineering magazine and conducting educational and research programs. 3 In addition, ASME promulgates and publishes over 400 separate codes and standards for areas of engineering and industry. These codes, while only advisory, have a powerful influence: federal regulations have incorporated many of them by reference, as have the laws of most States, the ordinances of major cities, and the laws of all the Provinces of Canada. See Brief for Petitioner 2. Obviously, if a manufacturer's product cannot satisfy the applicable ASME code, it is at a great disadvantage in the marketplace. 4 Among ASME's many sets of standards is its Boiler and Pressure Vessel Code. This set, like ASME's other codes, is very important in the affected industry; it has been adopted by 46 States and all but one of the Canadian Provinces. See id., at 5. Section IV of the code sets forth standards for components of heating boilers, including "low-water fuel cutoffs." If the water in a boiler drops below a level sufficient to moderate the boiler's temperature, the boiler can "dry fire" or even explode. A low-water fuel cutoff does what its name implies: when the water in the boiler falls below a certain level, the device blocks the flow of fuel to the boiler before the water level reaches a dangerously low point. To prevent dry firing and boiler explosions, ¶ HG-605 of Section IV provides that each boiler "shall have an automatic low-water fuel cutoff so located as to automatically cut off the fuel supply when the surface of the water falls to the lowest visible part of the water gage glass." Plaintiff's Exhibit 30A. See 635 F.2d 118, 121 (CA2 1980). 5 For some decades, McDonnell & Miller, Inc. (M&M), has dominated the market for low-water fuel cutoffs. But in the mid-1960's, respondent Hydrolevel Corporation entered the low-water fuel cutoff market with a different version of this device. The relevant distinction, for the purposes of this case, was that Hydrolevel's fuel cutoff, unlike M&M's, included a time delay.1 6 In early 1971, Hydrolevel secured an important customer. Brooklyn Union Gas Company, which had purchased M&M's product for several years, decided to switch to Hydrolevel's probe. Not surprisingly, M&M was concerned. 7 Because of its involvement in ASME, M&M was in an advantageous position to react to Hydrolevel's challenge. ASME's governing body had delegated the interpretation, formulation, and revision of the Boiler and Pressure Vessel Code to a Boiler and Pressure Vessel Committee. See App. 120. That committee in turn had authorized subcommittees to respond to public inquiries about the interpretation of the code. An M&M vice president, John W. James, was vice chairman of the subcommittee which drafted, revised, and interpreted Section IV, the segment of the Boiler and Pressure Vessel Code governing low-water fuel cutoffs. 8 After Hydrolevel obtained the Brooklyn Union Gas account, James and other M&M officials met with T. R. Hardin, the chairman of the Section IV subcommittee.2 The participants at the meeting planned a course of action. They decided to send an inquiry to ASME's Boiler and Pressure Vessel Committee asking whether a fuel cutoff with a time delay would satisfy the requirements of ¶ HG-605 of Section IV. James and Hardin, as vice chairman and chairman, respectively, of the relevant subcommittee, cooperated in drafting a letter, one they thought would elicit a negative response. 9 The letter was mailed over the name of Eugene Mitchell, an M&M vice president, to W. Bradford Hoyt, secretary of the Boiler and Pressure Vessel Committee and a full-time ASME employee. App. 62. Following ASME's standard routine, Hoyt referred the letter to Hardin, as chairman of the subcommittee. Under the procedures of the Boiler and Pressure Vessel Committee, the subcommittee chairman—Hardin—could draft a response to a public inquiry without referring it to the entire subcommittee if he treated it as an "unofficial communication." 10 As a result, Hardin, one of the very authors of the inquiry, prepared the response. Id., at 63. Although he retained control over the inquiry by treating the response as "unofficial," the response was signed by Hoyt, secretary of the Boiler and Pressure Vessel Committee, and it was sent out on April 29, 1971, on ASME stationery. Id., at 64. Predictably, Hardin's prepared answer, utilized verbatim in the Hoyt letter, condemned fuel cutoffs that incorporated a time delay: 11 "A low-water fuel cut-off is considered strictly as a safety device and not as some kind of an operating control. Assuming that the water gage glass is located in accordance with the requirements of Par. HG-602(b), it is the intent of Par. HG-605(a) that the low-water fuel cut-off operate immediately and positively when the boiler water level falls to the lowest visible part of the water gage glass. 12 "There are many and varied designs of heating boilers. If a time delay feature were incorporated in a low-water fuel cut-off, there would be no positive assurance that the boiler water level would not fall to a dangerous point during a time delay period." Ibid. 13 As the Court of Appeals in this case observed, the second paragraph of the response does not follow from the first: "If the cut-off is positioned sufficiently above the lowest permissible water level, a cut-off with a time-delay could assure, even allowing for the delay, that the fuel supply would stop by the time the water fell to the lowest visible part of the water-gauge glass." 635 F.2d, at 122-123. Hoyt signed and mailed the response without checking its accuracy. See App. 124-126. 14 As anticipated, M&M seized upon this interpretation of Section IV to discourage customers from buying Hydrolevel's product. It instructed its salesmen to tell potential customers that Hydrolevel's fuel cutoff failed to satisfy ASME's code. See 635 F.2d, at 123. And M&M's employees did in fact carry the message of the subcommittee's response to customers interested in buying fuel cutoffs. Thus, M&M successfully used its position within ASME in an effort to thwart Hydrolevel's competitive challenge. 15 Several months later, Hydrolevel learned of the subcommittee interpretation from a former customer. Hydrolevel wrote ASME for a copy of the April 29 response. On February 8, 1972, over the signature of the assistant secretary of the Boiler and Pressure Vessel Committee, ASME sent Hydrolevel a letter quoting the two paragraphs of the April 29 interpretation of Section IV. App. 66-67. 16 On March 23, Hydrolevel's president wrote Hoyt and demanded that ASME cure the effect of the April 29 letter by sending a correction to whomever might have received it. Id., at 68-73. Hoyt placed Hydrolevel's complaint on the agenda for the meetings of the Boiler and Pressure Vessel Committee and Subcommittee to be held on May 4 and 5. 17 On May 4, the subcommittee voted to confirm the intent of the first quoted paragraph of the April 29 letter. James, by then the chairman of the subcommittee, reported this recommendation to the committee on May 5. Id., at 82. Thereafter, the committee designated two persons to propose a response to Hydrolevel. Id., at 83. In the end, on June 9 the committee mailed Hydrolevel a reply that "confirmed the intent" of the April 29 letter. Id., at 84.3 The committee's letter further advised that there was 18 "no intent in Section IV to prohibit the use of low water fuel cutoffs having time delays in order to meet the requirements of Par. HG-605(a). This paragraph relates itself to Par. HG-602(b) which specifically delineates the location of the lowest visible part of the water gage glass." Ibid. 19 The committee concluded the letter with a warning paragraph suggested by James, see id., at 111-112: 20 "If a means for retarding control action is incorporated in a low-water fuel cutoff, the termination of the retard function must operate to cutoff the fuel supply before the boiler water level falls below the visible part of the water gage glass." Id., at 84. 21 After this response to its complaint, Hydrolevel continued to suffer from market resistance. Two years later, the Wall Street Journal published an article describing Hydrolevel's predicament in trying to sell a fuel cutoff that many in the industry thought to be in violation of ASME's code. Wall Street Journal, July 9, 1974, p. 44, col. 1; App. 94-98. Reacting to this story, ASME's Professional Practice Committee opened an investigation. It never discovered that James had been involved with the original inquiry. In a resolution reporting the results of its investigation, the committee decided that all ASME officials had acted properly. Further, the Professional Practice Committee "commend[ed] [James] for conducting himself in a forthright manner." Id., at 104. 22 Subsequently, James' part in drafting the original letter of inquiry became public because of his testimony in March 1975 before a Senate Subcommittee. See Voluntary Industrial Standards: Hearings before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 186-199 (1975) (testimony of John W. James of M&M (ITT)); see also id., at 171-185 (testimony of Eugene Mitchell, Manager of Original Equipment Sales, ITT Fluid Handling Division). Within a few months, Hydrolevel filed suit against ITT, ASME, and Hartford in the United States District Court for the Eastern District of New York. Hydrolevel alleged that the defendants' actions had violated §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2. App. 11. Prior to trial, Hydrolevel sold all its assets, except this suit, for salvage value. Ultimately, ITT and Hartford settled. 23 The lawsuit proceeded to trial against ASME, as the remaining defendant. Hydrolevel requested the trial court to instruct the jury that ASME could be held liable under the antitrust laws for its agents' conduct if the agents acted within the scope of their apparent authority. See id., at 59. The District Court, however, rejected this approach and, instead, at ASME's suggestion, charged the jury that ASME could be held liable only if it had ratified its agents' actions or if the agents had acted in pursuit of ASME's interests. The District Court explained to the jury: "If the officers or agents act on behalf of interests adverse to the corporation or acted for their own economic benefit or the benefit of another person or corporation, and this action was not ratified or adopted by the defendant [ASME], their misconduct cannot be considered that of the corporation with which they are associated." Id., at 49. 24 The jury, nonetheless, returned a verdict for Hydrolevel. 25 Before the Court of Appeals, the parties disputed the sufficiency of the evidence to support a verdict based on the District Court's instruction. See 635 F.2d, at 125. But the Court of Appeals chose not to decide whether the evidence was sufficient to demonstrate that ASME had ratified its agents' actions or that the agents had acted to advance ASME's interests. Instead, after surveying the law of agency and the policies underlying the antitrust laws, the Court of Appeals concluded that ASME could be held liable if its agents had acted within the scope of their apparent authority. Id., at 124-127. Since, therefore, the District Court had delivered "a charge that was more favorable to the defendant than the law requires," id., at 127, the Court of Appeals affirmed the judgment on liability, that is, the jury's finding that ASME was liable under § 1 of the Sherman Act for its agents' actions.4 26 Because the Court of Appeals' decision presents an important issue concerning the interpretation of the antitrust laws, we granted certiorari. 452 U.S. 937, 101 S.Ct. 3078, 69 L.Ed.2d 951 (1981). II A. 27 As the Court of Appeals observed, under general rules of agency law, principals are liable when their agents act with apparent authority5 and commit torts analogous to the antitrust violation presented by this case. See generally 10 W. Fletcher, Cyclopedia of the Law of Private Corporations ¶ 4886, pp. 400-401 (rev. ed. 1978); W. Seavey, Law of Agency § 92 (1964). For instance, a principal is liable for an agent's fraud though the agent acts solely to benefit himself, if the agent acts with apparent authority. See, e. g., Standard Surety & Casualty Co. v. Plantsville Nat. Bank, 158 F.2d 422 (CA2 1946), cert. denied, 331 U.S. 812, 67 S.Ct. 1203, 91 L.Ed. 1831 (1947). Similarly, a principal is liable for an agent's misrepresentations that cause pecuniary loss to a third party, when the agent acts within the scope of his apparent authority. Restatement (Second) of Agency §§ 249, 262 (1957) (Restatement); see Rutherford v. Rideout Bank, 11 Cal.2d 479, 80 P.2d 978 (1938). Also, if an agent is guilty of defamation, the principal is liable so long as the agent was apparently authorized to make the defamatory statement. Restatement §§ 247, 254. Finally, a principal is responsible if an agent acting with apparent authority tortiously injures the business relations of a third person. Id., § 248 and Comment b, p. 548. 28 Under an apparent authority theory, "[l]iability is based upon the fact that the agent's position facilitates the consummation of the fraud, in that from the point of view of the third person the transaction seems regular on its face and the agent appears to be acting in the ordinary course of the business confided to him." Id., § 261, Comment a, p. 571. See Record v. Wagner, 100 N.H. 419, 128 A.2d 921 (1957). As with the April 29 letter issued by the Boiler and Pressure Vessel Subcommittee, the injurious statements are "effective, in part at least, because of the personality of the one publishing it." Restatement § 247, Comment c, p. 545. In other words, "one who appears to have authority to make statements for the [principal] gives to his statements the weight of the [principal's] reputation," ibid.—in this case, the weight of ASME's acknowledged expertise in boiler safety. See generally W. Prosser, Law of Torts 467 (4th ed. 1971). 29 ASME's system of codes and interpretative advice would not be effective if the statements of its agents did not carry with them the assurance that persons in the affected industries could reasonably rely upon their apparent trustworthiness. Behind the principal's liability under an apparent authority theory, then, is "business expediency—the desire that third persons should be given reasonable protection in dealing with agents." Restatement § 262, Comment a, p. 572. See Ricketts v. Pennsylvania R. Co., 153 F.2d 757 (CA2 1946). The apparent authority theory thus benefits both ASME and the public whom ASME attempts to serve through its codes: "It is . . . for the ultimate interest of persons employing agents, as well as for the benefit of the public, that persons dealing with agents should be able to rely upon apparently true statements by agents who are purporting to act and are apparently acting in the interests of the principal." Restatement § 262, Comment a, p. 572. 30 The apparent authority theory has long been the settled rule in the federal system. See Ricketts v. Pennsylvania R. Co., 153 F.2d, at 759. In Friedlander v. Texas & Pacific R. Co., 130 U.S. 416, 9 S.Ct. 570, 32 L.Ed. 991 (1889), the Court held that an employer was not liable for the fraud of his agent, when the employer could derive no benefit from the agent's fraud. But Gleason v. Seaboard Air Line R. Co., 278 U.S. 349, 49 S.Ct. 161, 73 L.Ed. 415 (1929), discarded that rule. In Gleason, a railroad's employee sought to enrich himself by defrauding a customer of the railroad through a forged bill of lading. The Court of Appeals had absolved the railroad from liability because the employee perpetrated the fraud solely for his own benefit. But this Court reversed, overruling Friedlander. 278 U.S., at 357, 49 S.Ct., at 163. Noting that "there was . . . no want of authority in the agent," id., at 355, 49 S.Ct., at 162, the Court held the railroad liable despite the agent's desire to benefit only himself. It explained that "few doctrines of the law are more firmly established or more in harmony with accepted notions of social policy than that of the liability of the principal without fault of his own." Id., at 356, 49 S.Ct., at 162. 31 In a wide variety of areas, the federal courts, like this Court in Gleason, have imposed liability upon principals for the misdeeds of agents acting with apparent authority. See, e.g., Dark v. United States, 641 F.2d 805 (CA9 1981) (federal tax liability); National Acceptance Co. v. Coal Producers Assn., 604 F.2d 540 (CA7 1979) (common-law fraud); Holloway v. Howerdd, 536 F.2d 690 (CA6 1976) (federal securities fraud); United States v. Sanchez, 521 F.2d 244 (CA5 1975) (bail bond fraud), cert. denied, 429 U.S. 817, 97 S.Ct. 59, 50 L.Ed.2d 77 (1976); Kerbs v. Fall River Industries, Inc., 502 F.2d 731 (CA10 1974) (federal securities fraud); Gilmore v. Constitution Life Ins. Co., 502 F.2d 1344 (CA10 1974) (common-law fraud).6 32 In the past, the Court urt has refused to permit broad common-law barriers to relief to constrict the antitrust private right of action. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968). It stated there that "the purposes of the antitrust laws are best served by insuring that the private action will be an ever-present threat" to deter antitrust violations. Id., at 139, 88 S.Ct., at 1984. In Perma Life Mufflers, the Court honored that purpose by denying defendants the right to invoke a common-law defense (the doctrine of in pari delicto ) that was inconsistent with the antitrust laws. In this case, we can honor the statutory purpose best by interpreting the antitrust private cause of action to be at least as broad as a plaintiff's right to sue for analogous torts, absent indications that the antitrust laws are not intended to reach so far. See Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S.Ct. 2061, 2066, 68 L.Ed.2d 500 (1981); Perma Life Mufflers, 392 U.S., at 138, 88 S.Ct., at 1984. Our remaining inquiry, then, is whether ASME's liability under a theory of apparent authority is consistent with the intent behind the antitrust laws.7 B 33 We hold that the apparent authority theory is consistent with the congressional intent to encourage competition. ASME wields great power in the Nation's economy. Its codes and standards influence the policies of numerous States and cities, and, as has been said about "so-called voluntary standards" generally, its interpretations of its guidelines "may result in economic prosperity or economic failure, for a number of businesses of all sizes throughout the country," as well as entire segments of an industry. H.R.Rep.No.1981, 90th Cong., 2d Sess., 75 (1968). ASME can be said to be "in reality an extra-governmental agency, which prescribes rules for the regulation and restraint of interstate commerce." Fashion Originators' Guild of America, Inc. v. FTC, 312 U.S. 457, 465, 61 S.Ct. 703, 706, 85 L.Ed. 949 (1941). When it cloaks its subcommittee officials with the authority of its reputation, ASME permits those agents to affect the destinies of businesses and thus gives them the power to frustrate competition in the marketplace. 34 The facts of this case dramatically illustrate the power of ASME's agents to restrain competition. M&M instigated the submission of a single inquiry to an ASME subcommittee. For its efforts, M&M secured a mere "unofficial" response authored by a single ASME subcommittee chairman. Yet the force of ASME's reputation is so great that M&M was able to use that one "unofficial" response to injure seriously the business of a competitor. 35 Furthermore, a standard-setting organization like ASME can be rife with opportunities for anticompetitive activity. Many of ASME's officials are associated with members of the industries regulated by ASME's codes. Although, undoubtedly, most serve ASME without concern for the interests of their corporate employers, some may well view their positions with ASME, at least in part, as an opportunity to benefit their employers. When the great influence of ASME's reputation is placed at their disposal, the less altruistic of ASME's agents have an opportunity to harm their employers' competitors through manipulation of ASME's codes.8 36 Again, the facts of this case are illustrative. Hardin was able to issue an interpretation of ASME's Boiler and Pressure Vessel Code which in effect declared Hydrolevel's product unsafe. Hardin's interpretation of the code was sent out under Hoyt's name as secretary of the committee, though Hoyt exercised only ministerial duties and played no role in confirming the substance of the April 29, 1971, letter. See App. 125-126. Thus, without any meaningful safeguards,9 ASME entrusted the interpretation of one of its codes to Hardin. As a result, M&M was able to use ASME's reputation to hinder Hydrolevel's competitive threat. 37 A principal purpose of the antitrust private cause of action, see 15 U.S.C. § 15, is, of course, to deter anticompetitive practices. Pfizer Inc. v. Government of India, 434 U.S. 308, 314, 98 S.Ct. 584, 588, 54 L.Ed.2d 563 (1978); Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S., at 139, 88 S.Ct., at 1984; see Reiter v. Sonotone Corp., 442 U.S. 330, 342-344, 99 S.Ct. 2326, 2332-2333, 60 L.Ed.2d 931 (1979). It is true that imposing liability on ASME's agents themselves will have some deterrent effect, because they will know that if they violate the antitrust laws through their participation in ASME, they risk the consequences of personal civil liability. But if, in addition, ASME is civilly liable for the antitrust violations of its agents acting with apparent authority, it is much more likely that similar antitrust violations will not occur in the future. "[P]ressure [will be] brought on [the organization] to see to it that [its] agents abide by the law." United States v. A & P Trucking Co., 358 U.S. 121, 126, 79 S.Ct. 203, 207, 3 L.Ed.2d 165 (1958). Only ASME can take systematic steps to make improper conduct on the part of all its agents unlikely, and the possibility of civil liability will inevitably be a powerful incentive for ASME to take those steps.10 Thus, a rule that imposes liability on the standard-setting organization—which is best situated to prevent antitrust violations through the abuse of its reputation—is most faithful to the congressional intent that the private right of action deter antitrust violations.11 38 The wisdom of the apparent authority rule becomes evident when it is compared to the alternative approaches advanced by the District Court's instructions to the jury, see supra, at 564-565, and advocated by ASME.12 First, ASME insists that it should not be held liable unless it ratified the actions of its agents. But a ratification rule would have anticompetitive effects, directly contrary to the purposes of the antitrust laws. ASME could avoid liability by ensuring that it remained ignorant of its agents' conduct, and the antitrust laws would therefore encourage ASME to do as little as possible to oversee its agents. Thus, ASME's ratification theory would actually enhance the likelihood that the Society's reputation would be used for anticompetitive ends. 39 Second, ASME contends that it should not be held liable unless its agents act with an intent to benefit the Society. This proposed rule falls short, though, because it is simply irrelevant to the purposes of the antitrust laws. Whether they intend to benefit ASME or not, ASME's agents exercise economic power because they act with the force of the Society's reputation behind them. And, whether they act in part to benefit ASME or solely to benefit themselves or their employers, ASME's agents can have the same anticompetitive effects on the marketplace. The anticompetitive practices of ASME's agents are repugnant to the antitrust laws even if the agents act without any intent to aid ASME, and ASME should be encouraged to eliminate the anticompetitive practices of all its agents acting with apparent authority, especially those who use their positions in ASME solely for their own benefit or the benefit of their employers.13 C 40 Finally, ASME makes two additional arguments in an attempt to avoid antitrust liability. It characterizes treble damages for antitrust violations as punitive, and urges that under traditional agency law the courts do not employ apparent authority to impose punitive damages upon a principal for the acts of its agents. See Lake Shore & M. S. R. Co. v. Prentice, 147 U.S. 101, 13 S.Ct. 261, 37 L.Ed. 97 (1893); United States v. Ridglea State Bank, 357 F.2d 495 (CA5 1966); see also Restatement § 217C.14 It is true that antitrust treble damages were designed in part to punish past violations of the antitrust laws. See Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S., at 639, 101 S.Ct., at 2066. But treble damages were also designed to deter future antitrust violations. Ibid. Moreover, the antitrust private action was created primarily as a remedy for the victims of antitrust violations. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 485-486, 97 S.Ct. 690, 695-696, 50 L.Ed.2d 701 (1977); see Illinois Brick Co. v. Illinois, 431 U.S. 720, 746-747, 97 S.Ct. 2061, 2074-2075, 52 L.Ed.2d 707 (1977). Treble damages "make the remedy meaningful by counter-balancing 'the difficulty of maintaining a private suit' " under the antitrust laws. Brunswick Corp., supra, at 486, n. 10, 97 S.Ct., at 696, n.10, quoting 21 Cong.Rec. 2456 (1890) (remarks of Sen. Sherman). Since treble damages serve as a means of deterring antitrust violations and of compensating victims, it is in accord with both the purposes of the antitrust laws and principles of agency law to hold ASME liable for the acts of agents committed with apparent authority. See Restatement § 217C, Comment c, p. 474 (rule limiting principal's liability for punitive damages does not apply to special statutes giving triple damages). 41 In addition, ASME contends it should not bear the risk of loss for antitrust violations committed by its agents acting with apparent authority because it is a nonprofit organization, not a business seeking profit. But it is beyond debate that nonprofit organizations can be held liable under the antitrust laws. See, e.g., Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U.S. 656, 81 S.Ct. 365, 5 L.Ed. 358 (1961); Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945). Although ASME may not operate for profit, it does derive benefits from its codes, including the fees the Society receives for its code-related publications and services, the prestige the codes bring to the Society, the influence they permit ASME to wield, and the aid the standards provide the profession of mechanical engineering. Since the antitrust violation in this case could not have occurred without ASME's codes and ASME's method of administering them, it is not unfitting that ASME be liable for the damages arising from that violation. See W. Prosser, Law of Torts 459 (4th ed. 1971); W. Seavey, Law of Agency § 83 (1964). Furthermore, as shown above, ASME is in the best position to take precautions that will prevent future antitrust violations.15 Thus, the fact that ASME is a nonprofit organization does not weaken the force of the antitrust and agency principles that indicate that ASME should be liable for Hydrolevel's antitrust injuries. III 42 We need not delineate today the outer boundaries of the antitrust liability of standard-setting organizations for the actions of their agents committed with apparent authority. There is no doubt here that Hardin acted within his apparent authority when he answered an inquiry about ASME's Boiler and Pressure Vessel Code as the chairman of the relevant ASME subcommittee. And in this case, we do not face a challenge to a good-faith interpretation of an ASME code reasonably supported by health or safety considerations. See Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963). We have no difficulty in finding that this set of facts falls well within the scope of ASME's liability on an apparent authority theory. 43 When ASME's agents act in its name, they are able to affect the lives of large numbers of people and the competitive fortunes of businesses throughout the country. By holding ASME liable under the antitrust laws for the antitrust violations of its agents committed with apparent authority, we recognize the important role of ASME and its agents in the economy, and we help to ensure that standard-setting organizations will act with care when they permit their agents to speak for them. We thus make it less likely that competitive challengers like Hydrolevel will be hindered by agents of organizations like ASME in the future. 44 The judgment of the Court of Appeals is affirmed. 45 So ordered. 46 Chief Justice BURGER, concurring in the judgment. 47 I concur in the judgment. However, I do not agree with the reasoning that leads the Court to its conclusion. I agree with the result reached since petitioner permitted itself to be used to further the scheme which caused injury to respondent. At no time did petitioner disavow the challenged conduct of its members who misused their positions in the Society. Under the instructions approved by petitioner and given by the District Court, the jury found that petitioner had "ratified or adopted" the conduct in question.* On that basis the judgment against petitioner should be affirmed but no general rule can appropriately be drawn from the Court's holding. 48 Justice POWELL, with whom Justice WHITE and Justice REHNQUIST join, dissenting. 49 The Court today adopts an unprecedented theory of antitrust liability, one applied specifically to a nonprofit, standard-setting association but a theory with undefined boundaries that could encompass a broad spectrum of our country's nonprofit associations. The theory, based on the agency concept of "apparent authority," would impose the potentially crippling burden of treble damages. In this case, the Court specifically holds that standard-setting organizations may be held liable for the acts of their agents even though the organization never ratified, authorized, or derived any benefit whatsoever from the fraudulent activity of the agent and even though the agent acted solely for his private employer's gain. In my view such an expansive rule of strict liability, at least as applied to nonprofit organizations, is inconsistent with the weight of precedent and the intent of Congress, unsupported by the rules of agency law that the Court purports to apply, and irrelevant to the achievement of the goals of the antitrust laws. Accordingly, I dissent. 50 * The American Society of Mechanical Engineers (ASME) is a nonprofit, tax-exempt, membership corporation with over 90,000 members. Among its many activities, ASME drafts over 400 codes and standards. These codes have been developed through the voluntary efforts of ASME's members, and are a valuable public service. The Boiler and Pressure Vessel Code, relevant in this case, is some 18,000 pages in length. In addition to preparing codes and standards, ASME members—through committees—perform the further service of responding to public inquiries concerning interpretation of the codes. Some measure of the extent of this service can be gathered from the 20,000-30,000 inquiries a year received by the organization concerning just the Boiler and Pressure Vessel Code alone. As a result of a fraudulent answer given by an ASME subcommittee chairman to one of these thousands of inquiries, the entire organization has been exposed to potentially crippling liability.1 51 Of course, nonprofit associations are subject to the antitrust laws. The Court has so held on several occasions. See Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975).2 Yet the Court also has noted that the antitrust laws need not be applied to professional organizations in precisely the same manner as they are applied to commercial enterprises. In Goldfarb, supra, for example, the Court recognized that "[i]t would be unrealistic to view the practice of professions as interchangeable with other business activities, and automatically to apply to the professions antitrust concepts that originated in other areas."3 Id., at 788, n. 17, 95 S.Ct., at 2013, n.17. In view of this recognition, one would not have expected the Court to take the occasion of this case to promulgate an expansive rule of antitrust liability not heretofore applied by it to a commercial enterprise much less to a nonprofit organization. 52 Indeed, the Court points to no case in which any court has held the apparent authority theory of liability applicable in an antitrust case. Nor does the Court cite a single decision in which the apparent authority theory of liability has been applied in a case involving treble or punitive damages and an agent who acts without any intention of benefiting the principal.4 In a word, the Court makes new law, largely ignoring existing precedent. 53 In Mine Workers v. Coronado Coal Co., 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975 (1922), and Coronado Coal Co. v. Mine Workers, 268 U.S. 295, 45 S.Ct. 551, 69 L.Ed. 963 (1925), the Court held that the national union was not liable as principal for the antitrust violations of the local union. The Court was hesitant to impose treble-damages liability on a membership organization in the absence of clear evidence showing ratification or authorization.5 Even in the context of commercial enterprises, the Courts of Appeals that have considered the matter appear to reject antitrust liability upon mere apparent authority.6 54 Moreover, the Court as much as concedes that an apparent authority rule of liability has rarely, if ever, been used to impose punitive damages upon the principal. See ante, at 570, n. 7.7 Rather than contest this well-established rule of agency law, the Court argues that treble damages are not punitive or, even if they are, the purposes of the antitrust laws override this basic rule of the law of agency. In fact the Court often has characterized treble-damages liability as punitive: "The very idea of treble damages reveals an intent to punish past, and to deter future, unlawful conduct." Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S.Ct. 2061, 2066, 68 L.Ed.2d 500 (1981). See P. Areeda & D. Turner, Antitrust Law ¶ 311b (1978) ("whether or not compensatory damages ever punish, treble damages are indisputably punishment"). In the context of a nonprofit, tax-exempt organization it would seem even clearer that treble damages primarily punish and are intended to do so. There is no element of restitution here; ASME has derived no ill-gotten gain from the misdeeds of its disloyal agent. 55 In short, the Court launches on an unchartered course. I know of no antitrust decision that has imposed treble-damages liability upon a commercial enterprise, let alone a nonprofit organization, solely on an apparent authority theory of liability.8 The antitrust laws have been effectively enforced for over 90 years without the need for such a theory of liability. Indeed, the very facts of this case belie the necessity of simply creating a new theory of liability; the jury found ASME liable not upon a theory of apparent authority but upon the traditional basis of ratification or authorization. The apparent authority rationale was not even argued to the Second Circuit on appeal. The Second Circuit, and now this Court, reach out unnecessarily to embrace a dubious new doctrine. That the Court chooses the case of a nonprofit, tax-exempt organization to announce its new rule is particularly inappropriate. Nor can the Court's decision be squared with the intent of Congress in enacting the Sherman Act. II 56 This case comes before us as an antitrust suit under the Sherman Act. Our focus should be on the intent of Congress.9 See Texas Industries, Inc. v. Radcliff Materials, Inc., supra, at 639, 101 S.Ct., at 2066. And that intent emerges clearly from the legislative history: "[The Sherman Act] was enacted in the era of 'trusts' and of 'combinations' of businesses and of capital organized and directed to control of the market by suppression of competition in the marketing of goods and services, the monopolistic tendency of which had become a matter of public concern. The end sought was the prevention of restraints to free competition in business and commercial transactions which tended to restrict production, raise prices or otherwise control the market to the detriment of purchasers or consumers of goods and services . . ." Apex Hosiery Co. v. Leader, 310 U.S. 469, 492-493, 60 S.Ct. 982, 992, 84 L.Ed. 1311 (1940). 57 Senator Sherman twice explained that his bill was directed at anticompetitive business activity and not at voluntary associations. In response to a request that the legislation be more clearly tailored to "these great trusts, these great corporations, these large moneyed institutions," Senator Sherman answered as follows: 58 "The bill as reported contains three or four simple propositions which relate only to contracts, combinations, agreements made with a view and designed to carry out a certain purpose . . .. It does not interfere in the slightest degree with voluntary associations . . . to advance the interests of a particular trade or occupation. . . . They are not business combinations. They do not deal with contracts, agreements, etc. They have no connection with them." 21 Cong.Rec. 2562 (1890). 59 When Senator Hoar expressed the concern that the bill would prohibit temperance organizations, and proposed an amendment to exclude them from the bill, Senator Sherman spoke reassuringly: 60 "I have no objection to [this] amendment, but I do not see any reason for putting in temperance societies any more than churches or school-houses or any other kind of moral or educational associations that may be organized. Such an association is not in any sense a combination or arrangement made to interfere with interstate commerce." Id., at 2658. 61 This legislative history does not indicate that nonprofit associations are exempt from the antitrust laws. See Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975). But it does counsel against adopting a new rule of agency law that extends the exposure of such organizations to potentially destructive treble-damages liability. 62 In addition to the legislative history, it is particularly relevant—in view of the Court's reliance on the modern law of agency—to consider the accepted law of agency as it existed at the time the Sherman Act was passed.10 It was clear under basic principles then established that charitable organizations were not liable for the torts of their agents.11 Whether a nonprofit, tax-exempt, public service association would have been considered a "charity" is not clear, but one would think that it well might have been.12 63 Moreover, under the laws of agency as known to the Congress that passed the Sherman Act it was far from clear—even in cases involving commercial enterprises—that a principal could be held liable for the deliberate torts of his agent. According to one treatise of the time, "[w]hile . . . it is well settled that the principal is liable for the negligent act of his agent, committed in the course of his employment, it has been held in many cases, that he is not liable for the agent's willful or malicious act." F. Mechem, Law of Agency § 740 (1889) (hereafter Mechem).13 Indeed, the Court acknowledges this much when it notes that in Friedlander v. Texas & Pacific R. Co., 130 U.S. 416, 9 S.Ct. 570, 32 L.Ed. 991 (1889) decided the year before the Sherman Act was passed—"the Court held that an employer was not liable for the fraud of his agent, when the employer could derive no benefit from the agent's fraud." Ante, at 567.14 64 Finally, no principle of agency law was more firmly established in 1890—or now for that matter—than that punitive damages are not awarded against a principal for the acts of an agent acting only with apparent authority and without any intention of benefiting the principal. Indeed, this Court went further, holding more generally that " 'punitive or vindictive damages, or smart money, [are] not to be allowed as against the principal, unless the principal participated in the wrongful act of the agent.' " Lake Shore & M. S. R. Co. v. Prentice, 147 U.S., at 114, 13 S.Ct., at 265, quoting Hagan v. Providence & Worcester R. Co., 3 R.I. 88, 91 (1854).15 65 Although an inquiry into the legislative history and the law of agency is not conclusive, it does cast serious doubt on the Court's choice of this case to promulgate a new rule of antitrust liability. Whatever the merits of an apparent authority rule of liability for commercial enterprises, in the case of a treble-damages action against a nonprofit organization, such a rule is inconsistent with what appears to have been the intent of Congress in enacting the Sherman Act. III 66 The underlying theme of the Court's opinion seems to be that any rule of agency law that widens the net of antitrust enforcement and liability should be adopted. Yet the Court has never used such a single-minded approach in the past. In United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978), for example, the Court held that intent is a necessary element of a criminal antitrust offense. The Court was unwilling to assume that Congress had intended to create a strict liability crime despite the potential increase in deterrence. Similarly, in Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977), the Court held that indirect purchasers could not use a "pass-on" theory to recover treble damages from an antitrust violator. The Court rejected the argument that the antitrust laws would be more effective were the class of potential plaintiffs widened. On the contrary, "the antitrust laws will be more effectively enforced by concentrating the full recovery for the overcharge in the direct purchasers rather than by allowing every plaintiff potentially affected by the overcharge to sue." Id., at 735, 97 S.Ct., at 2069. Nor would the Court accept a rule that might permit both indirect and direct purchasers to sue for the same overcharge. Such a rule "would create a serious risk of multiple liability for defendants." Id., at 730, 97 S.Ct., at 2066. Thus, the Court has adopted a more discerning approach to questions of antitrust liability in the past—an approach that considers the fairness and appropriateness of a rule in addition to its perceived potential for deterrence. 67 The Court argues that its expanded rule of liability furthers effective antitrust enforcement. One may question whether a rule of liability developed so late in the day and with so little support in precedent can be described as necessary to antitrust enforcement. When one considers further that the jury found ASME liable under traditional principles, the need for an expanded rule becomes even less credible. Nor does the Court explain how its rule of apparent authority serves the purpose of effective antitrust enforcement. The primary beneficiary in this case was McDonnell & Miller, the manufacturing company that arranged for the fraudulent ruling by the ASME subcommittee chairman. The sole purpose of the fraud was to disadvantage McDonnell & Miller's competitor. The focus of Hydrolevel's attack, however, has been on ASME.16 It is curious reasoning to argue, as the Court does, that a rule that encourages plaintiffs to seek recovery from nonprofit organizations, rather than from the commercial enterprises that benefited from the violation, will facilitate proper antitrust enforcement.17 68 In a more fundamental sense, the Court's assignment of liability to ASME on a theory of apparent authority simply has no relevance to the furtherance of the purposes of the antitrust laws. ASME is not a competitor. The competition here was between McDonnell & Miller, Inc., and Hydrolevel. Of course, if ASME ratifies the fraudulent act of its agent, as the jury found, liability should attach. But the Court has devised what amounts to a rule of strict liability for voluntary associations in antitrust cases. Under the Court's rule ASME would be liable if an ASME building employee pilfered ASME stationery and supplied it to McDonnell & Miller. Similarly, if a private pharmaceutical school—a tax-exempt corporation like ASME—released a study condemning a particular drug, because a competing drug company had suborned the professor who wrote the report, the Court's rule would subject the school to the full brunt of treble damages. 69 Section 1 of the Sherman Act requires a contract, combination, or conspiracy in restraint of trade. The Court attaches liability in this case on the dubious notion that ASME somehow has "conspired" with McDonnell & Miller. Yet it stretches the concept of vicarious liability beyond its rational limits to conceive of Hardin and James as conspiring on behalf of ASME when they acted solely for the benefit of McDonnell & Miller and against the interests of ASME.18 The Court simply opens new vistas in the law of conspiracy and vicarious liability, as well as in the imposition of the harsh penalty of treble damages. 70 Whatever the application of agency law in its traditional setting, application of the most expansive rules of liability in the context of antitrust treble damages and nonprofit, tax-exempt associations threatens serious injustice and overdeterrence. There is no way in which an association adequately can protect itself from this sort of liability. There is no chain of delegated authority, from stockholders through directors and officers, in the typical voluntary association. The members of these associations exercise a far less structured control than the stockholders and directors of a commercial enterprise. Perhaps ASME will attempt to protect itself by ceasing to respond to inquiries concerning its codes. That hardly would contribute either to antitrust enforcement or to the public welfare. And whereas a commercial enterprise may have the resources to bear a treble-damages award, the same cannot be said of most nonprofit organizations.19 71 The Court is so zealous to impose treble-damages liability that it ignores a basic purpose of the Sherman Act: the preservation of private action contributing to the public welfare. See United States v. United States Gypsum Co., 438 U.S., at 438-443, 98 S.Ct., at 2874-2876. ASME industry standard-setting can have a significant potential for consumer benefit: for example, its boiler safety information can be expensive if consumers are forced to gain it only by their own experience or by the creation of another bureaucracy. The Court's policy discussion takes no account of this potential cost. Rather, it appears to be so concerned with imposing liability that it puts at risk much of the beneficial private activity of the voluntary associations of our country. 72 How far the Court's holding extends is unclear. The Court emphasizes that ASME is a standard-setting organization. Yet it does not limit its rationale to these particular organizations. One must be concerned whether the new doctrine and the sweep of the Court's language will be read as exposing the array of nonprofit associations—professional, charitable, educational, and even religious—to a new theory of strict liability in treble damages. 1 M&M's fuel cutoff is a floating bulb that falls with the boiler's water level. When the level reaches the critical point, the bulb causes a switch to cut off the boiler's fuel supply. Hydrolevel's product, in contrast, was an immovable probe inserted in the side of the boiler; when the water level dropped below the probe, the fuel supply was interrupted. Because water in a boiler surges and bubbles, the level intermittently would seem to fall slightly below the probe even though the overall level remained safe. To prevent premature fuel cutoff because of these intermittent fluctuations, Hydrolevel's probe included a time delay that allowed the boiler to operate for a brief period after the water level dropped beneath the probe. 2 Hardin was an executive vice president of Hartford Steam Boiler Inspection and Insurance Company. A controlling interest in Hartford was owned by International Telephone and Telegraph Corporation, which acquired M&M within the year. See 635 F.2d 118, 122, n. 2 (CA2 1980). 3 Actually, the committee "confirmed the intent" of ASME's February 8, 1972, letter to Hydrolevel. That letter, however, simply quoted the original April 29, 1971, response. See App. 66-67. 4 The Court of Appeals remanded the case to the District Court after finding that the damages awarded Hydrolevel were excessive and that the District Court had made errors in its calculation of damages. 635 F.2d, at 128-131. The damages issue is the subject of a pending cross-petition for certiorari, No. 80-1771, filed April 22, 1981. Hydrolevel's damages arguments are not now before us, and we express no opinion on that aspect of the Court of Appeals' decision. 5 "Apparent authority is the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, arising from and in accordance with the other's manifestations to such third persons." Restatement (Second) of Agency § 8 (1957). 6 The dissent delves into the agency law of the late 19th century and concludes that "it was far from clear" that a principal could be held liable for the deliberate torts of his agent. Post, at 587. But in fact, while there was a division of authority, many courts had made it very clear that principals could be held liable for torts analogous to the antitrust violations committed by ASME's agents. For instance, a treatise of that era noted that a "considerable number of American courts" had held the principal liable for the agent's fraud, though the agent acted solely for his own benefit, and praised a leading opinion for its "singular ability and lucidity." E. Huffcut, Elements of the Law of Agency § 155, p. 168 (1895). Indeed, the author commented that the cases holding a principal liable when his agent acted with apparent authority and for the agent's sole benefit were "too various to be referred to in detail." Id., § 157. In holding a telegraph company liable for the fraud of its agent committed solely for his personal benefit, one court summarized the reasoning that became widespread during the last half of the 19th century: "Persons receiving dispatches in the usual course of business, when there is nothing to excite suspicion, are entitled to rely upon the presumption that the agents intrusted with the performance of the business of the company have faithfully and honestly discharged the duty owed by it to its patrons, and that they would not knowingly send a false or forged message." McCord v. Western Union Tel. Co., 39 Minn. 181, 185, 39 N.W. 315, 317 (1888). See, e.g., Bank of Batavia v. New York, L. E. & W. R. Co., 106 N.Y. 195, 12 N.E. 433 (1887). Thus, based on the agency law of the late 19th century, there is ample support for holding ASME liable, particularly since Congress intended that the antitrust laws be given broad, remedial effect. See, e.g., Pfizer Inc. v. Government of India, 434 U.S. 308, 312-313, 98 S.Ct. 584, 587, 54 L.Ed.2d 563 (1978). But, as we have made clear before, Victorian common law does not define the limits of the antitrust private action. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968) (refusing to apply the ancient defense of in pari delicto in antitrust cases). We look to the general principles of the common law for guidance in deciding the scope of the antitrust cause of action, see National Society of Professional Engineers v. United States, 435 U.S. 679, 688, 98 S.Ct. 1355, 1363, 55 L.Ed.2d 637 (1978), but our decisions are determined by the congressional intent that led to the enactment of the antitrust laws, a desire to enhance competition, see id., at 688, 691, 98 S.Ct., at 1365. Here, general agency principles would lead to a finding of liability if the violation in this case were a mere tort; and imposing liability on ASME in accord with those common-law principles honors the congressional intent behind the antitrust statutes. 7 Evidently, in recent years no Court of Appeals other than the Second Circuit has directly decided whether a principal can be held liable for antitrust damages based on an apparent authority theory. But cf. Truck Drivers' Local No. 421 v. United States, 128 F.2d 227 (CA8 1942). The dissent cites several cases, stating that they appear to reject antitrust liability based on apparent authority. See post, at 581-582, and n. 6. United States v. Cadillac Overall Supply Co., 568 F.2d 1078, 1090 (CA5), cert. denied, 437 U.S. 903, 98 S.Ct. 3088, 57 L.Ed.2d 1133 (1978); United States v. Hilton Hotels Corp., 467 F.2d 1000, 1004-1007 (CA9 1972), cert. denied sub nom. Western International Hotels Co. v. United States, 409 U.S. 1125, 93 S.Ct. 938, 35 L.Ed.2d 256 (1973); United States v. American Radiator & Standard Sanitary Corp., 433 F.2d 174, 204 (CA3 1970), cert. denied, 401 U.S. 948, 91 S.Ct. 929, 28 L.Ed.2d 231 (1971). A fair reading of those cases, however, reveals that they did not discuss the merits of an apparent authority theory of antitrust liability. The dissent then dismisses other cases that also do not directly discuss the validity of the apparent authority theory, but that contain language approving apparent authority instructions, see post, at 583-584, n. 8. United States v. Continental Group, Inc., 603 F.2d 444, 468, n. 5 (CA3 1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 703, 62 L.Ed.2d 668 (1980); Continental Baking Co. v. United States, 281 F.2d 137, 150-151 (CA6 1960). 8 For example, James' employer did not overlook his usefulness as an ASME official. In November 1973, even after the Hydrolevel events had taken place, an M&M executive recommended that James be retained by M&M. The recommendation stated: "A major reason for the continued success at M&M is a result of [James'] efforts and skill in influencing the various code making bodies to 'legislate' in favor of M&M products. This has been a planned strategy for the business under E. N. McDonnell and carried out with considerable success as evidenced by the M&M market penetration of 70 plus %." App. 86. The writer emphasized a number of James' ASME activities, including: "Member of main boiler and pressure code committee" and "Chairman of the heating boiler sub-committee (section 4)." Ibid. 9 ASME suggests that Hardin's response did undergo a form of committee review, because he sent copies to the chairman and vice chairman of the full committee. Brief for Petitioner 8. But there is no indication that those officers carefully scrutinized Hardin's response. And certainly they will be encouraged to give responses a closer look in the future if ASME is subject to antitrust liability under an apparent authority theory. 10 Permitting private plaintiffs to sue defendants like ASME will make that incentive especially powerful, because private suits are an important element of the Nation's antitrust enforcement effort: "Congress created the treble-damages remedy . . . precisely for the purpose of encouraging private challenges to antitrust violations. These private suits provide a significant supplement to the limited resources available to the Department of Justice for enforcing the antitrust laws and deterring violations." Reiter v. Sonotone Corp., 442 U.S. 330, 344, 99 S.Ct. 2326, 2333, 60 L.Ed.2d 931 (1979) (emphasis in original). 11 The apparent authority rule is also consistent with the congressional desire that the antitrust laws sweep broadly. Congress extended antitrust liability to "[e]very person," 15 U.S.C. §§ 1, 2, and defined "person" to include corporations and associations, 15 U.S.C. § 7. 12 ASME insists that the Court foreclosed imposition of civil antitrust liability based on apparent authority in Mine Workers v. Coronado Coal Co., 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975 (1922), and Coronado Coal Co. v. Mine Workers, 268 U.S. 295, 45 S.Ct. 551, 69 L.Ed. 963 (1925). Those cases, however, are not controlling here. The Court expressly pointed out: "Here it is not a question . . . of holding out an appearance of authority on which some third person acts." 259 U.S., at 395, 42 S.Ct., at 577; 268 U.S., at 304-305, 45 S.Ct., at 554. In fact, it noted: "A corporation is responsible for the wrongs committed by its agents in the course of its business, and this principle is enforced against the contention that torts are ultra vires of the corporation." 259 U.S., at 395, 42 S.Ct., at 577; 268 U.S., at 304, 45 S.Ct., at 554. 13 The dissent argues, unconvincingly to us, that imposing antitrust liability on ASME will not advance enforcement of the antitrust laws. The dissent claims that the apparent authority rule will "encourag[e] plaintiffs to seek recovery from nonprofit organizations, rather than from the commercial enterprises that benefited from the violation." Post, at 591. Here, the dissent engages in "curious reasoning," see ibid., because today's decision does not encourage a plaintiff to sue any particular defendant to the exclusion of others; it merely lists organizations like ASME among the possible defendants in cases similar to this one. Indeed, although the litigation in this case ended with ASME as the only remaining defendant, it seems likely that, in general, a plaintiff will prefer to bring a corporate defendant like M&M (ITT) before a jury, rather than a nonprofit organization that understandably may appeal to a jury's sympathies and that may not provide so deep a pocket as a commercial enterprise. In addition, the dissent insists that ASME and other such organizations cannot take steps to reduce the likelihood that antitrust violations like the one that occurred in this case will take place in the future. Post, at 591-592,n. 17. Evidently ASME does not agree, because it has instituted new procedures specifically in response to this suit. See n. 15, infra. The dissent simply refuses to accept that ASME and other such organizations can react to potential antitrust liability by making their associations less subject to fraudulent manipulation. 14 A majority of courts, however, have held corporations liable for punitive damages imposed because of the acts of their agents, in the absence of approval or ratification. See W. Prosser, Law of Torts 12 (4th ed. 1971). E.g., Kelite Products, Inc. v. Binzel, 224 F.2d 131, 144 (CA5 1955) ("[T]he jury may in its discretion assess punitive damages against a corporate defendant for oppressive acts of its agent done in the course of his employment, regardless of actual authority or ratification"); Mayo Hotel Co. v. Danciger, 143 Okla. 196, 200, 288 P. 309, 313 (1930) (holding corporate principal liable for punitive damages, noting that "the legal malice of the servant is the legal malice of the corporation"). In fact, the Court may have departed from the trend of late 19th century decisions when it issued Lake Shore & M.S.R. Co. v. Prentice, 147 U.S. 101, 13 S.Ct. 261, 37 L.Ed. 97 (1893), requiring the principal's participation, approval, or ratification. See Singer Manufacturing Co. v. Holdfodt, 86 Ill. 455, 459 (1877) ("if the wrongful act of the agent is perpetrated while ostensibly discharging duties within the scope of the corporate purposes, the corporation may be liable to vindictive damages"); see also Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 803-805, 22 So. 53, 57-59 (1897); Goddard v. Grand Trunk R. Co., 57 Me. 202, 223-224 (1869). 15 Indeed, ASME has initiated procedures to protect against similar misadventures in the future. After its experience with the Hydrolevel affair, ASME began issuing a publication containing all written technical inquiries pertaining to codes and their interpretations, a publication available through subscription. See ASME Court of Appeals Exhibit Volume, p. 110; App. in Nos. 79-7254, 79-7260 (CA2), pp. 784 and 804. Apparently, ASME now gives its interpretations close scrutiny through the publication process. According to the publication's foreward, "[i]n some few instances, a review of the interpretation revealed a need for corrections of a technical nature." In those cases, ASME published "a corrected interpretation . . . immediately after the original reply." See Interpretations, ASME Boiler and Pressure Vessel Code, Foreword (No. 7: Replies to Technical Inquiries January 1, 1980, through June 30, 1980). In addition, the readers are advised that ASME may reconsider its interpretation "when or if additional information is available which the inquirer believes might affect the interpretation." Ibid. ASME's new procedure illustrates that the standard-setting organization itself is in the best position to prevent antitrust violations committed by its agents acting with apparent authority, and therefore that the policies of antitrust and agency law call for imposition of liability upon ASME. * The District Court instructed the jury that it could find petitioner liable for the acts of its members only if they acted on behalf of the corporation within the scope of their actual authority or if the corporation thereafter ratified or adopted their acts. Judge Weinstein refused to give the apparent authority instruction proposed by respondent. Nevertheless, the Court of Appeals did not rest on the narrow ratification theory underlying the District Court judgment, but instead reached out to decide that petitioner is liable for the acts of its members if those acts are found to be within their apparent authority: the jury never found liability on that theory and the Court of Appeals went "out of bounds." I regard that aspect of the Court of Appeals' opinion and that part of the Court's opinion today as dictum not essential to support the result reached. 1 The District Court entered a judgment against ASME in an amount in excess of $7 million—a sum that would destroy many such organizations. By contrast McDonnell & Miller, Inc., and Hartford Steam Boiler Inspection and Insurance Co., commercial enterprises owned by International Telephone and Telegraph Corp., and the beneficiaries of the fraudulent conduct in this case, have settled for $725,000 and $75,000 respectively. Curiously, the Court speaks of the "wisdom" of a rule that encourages such an inequitable result. Ante, at 573. The Court correctly notes that the Court of Appeals reversed the damages award against ASME and remanded for a new estimation. Perhaps the final award against ASME will be substantially less than the $7.5 million judgment originally entered. Yet there is no assurance of this. 2 Although associations now are viewed as being within the scope of the antitrust laws, to my knowledge this is the first case in which the Court has held explicitly that a nonprofit, tax-exempt association is subject to treble-damages liability. Cf. Areeda, Antitrust Immunity for "State Action" After Lafayette, 95 Harv.L.Rev. 435, 455 (1981) (footnote omitted) ("[A]ntitrust liability does not necessarily call for a damage remedy. . . . The Supreme Court may come to agree that antitrust liability may vary according to the remedies sought"). ASME refers to itself as a "society." I use the words "organization" and "association" interchangeably to describe a broad range of nonprofit, membership entities and tax-exempt organizations. 3 Goldfarb "properly left to the Court some flexibility in considering how to apply traditional Sherman Act concepts to professions long consigned to self-regulation." National Society of Professional Engineers v. United States, 435 U.S. 679, 699, 98 S.Ct. 1355, 1369, 55 L.Ed.2d 637 (1978) (BLACKMUN, J., concurring in part and concurring in judgment). See id., at 701, 98 S.Ct., at 1370 (stressing the need for "elbowroom for realistic application of the Sherman Act" to other than commercial enterprises). 4 The Court cites to several decisions, ante, at 575, n. 14, in which courts have levied punitive damages upon the principal for the "unauthorized" acts of an agent. It is not clear that any of these decisions holds the principal liable upon the apparent authority of an agent acting without intent to benefit the principal. None of them concerns the antitrust laws. None involves a nonprofit entity. 5 "[A] trades-union . . . might be held liable . . . but certainly it must be clearly shown in order to impose such a liability on an association of 450,000 men that what was done was done by their agents in accordance with their fundamental agreement of association." Coronado Coal Co., 268 U.S., at 304, 45 S.Ct., at 554. The Court refused to impose liability on the national union simply because it had the authority to discipline the local. See Mine Workers, 259 U.S., at 395, 42 S.Ct., at 577. Moreover, the Court indicated that this was not a case in which a theory of apparent authority might be applied—despite the national union's power over the local and despite the support of the strike by the president of the national union: "Here it is not a question of contract or of holding out an appearance of authority on which some third person acts." Ibid. The majority quotes this language, see ante, at 573, n. 12, but misses its point. The Mine Workers Court well could have characterized the case before it as involving an exercise of apparent authority by the local union or the national president; it refused to do so. See Truck Drivers' Local No. 421 v. United States, 128 F.2d 227, 235 (CA8 1942) (viewing the holding in Mine Workers as rejecting an apparent authority theory of antitrust liability). 6 See United States v. American Radiator & Standard Sanitary Corp., 433 F.2d 174, 204 (CA3 1970); United States v. Cadillac Overall Supply Co., 568 F.2d 1078, 1090 (CA5 1978); United States v. Hilton Hotels Corp., 467 F.2d 1000 (CA9 1972). Accord Truck Drivers' Local No. 421 v. United States, supra, at 235 (union not liable for the antitrust violations of a local division: "To bind the union in a situation such as this, actual and authorized agency was necessary; mere apparent authority would not be sufficient"). In United States v. Hilton Hotels Corp., supra, for example, the Court of Appeals for the Ninth Circuit ruled out liability on apparent authority by requiring that the agent hold a "purpose to benefit the corporation." Id., at 1006, n. 4. In light of the rule adopted by the Court today, it is ironic that the Court of Appeals in Hilton Hotels considered that its rule of liability was actually a broad one. Although implicitly rejecting a rule of apparent authority, the court held that a corporation could be liable for the acts of its agents "even when done against company orders." Id., at 1004. The court argued that such an expansive rule of liability was justified in the case before it, involving a commercial enterprise, because the Sherman Act was "primarily concerned with the activities of business entities." Ibid. A rule promoting corporate liability was supported further by the consideration that antitrust violations "are usually motivated by a desire to enhance profits," "involve basic policy decisions, and must be implemented over an extended period of time," and "if a violation of the Sherman Act occurs, the corporation, and not the individual agents, will have realized the profits from the illegal activity." Id., at 1006. None of these considerations in support of a broad rule of liability applies to the fraudulent, self-interested conduct of ASME members in this case. Yet the Court adopts a rule of liability far broader than that stated by the Ninth Circuit with such care. 7 In Lake Shore & M. S. R. Co. v. Prentice, 147 U.S. 101, 107, 13 S.Ct. 261, 262, 37 L.Ed. 97 (1893), the Court held that "[a] principal . . . cannot be held liable for exemplary or punitive damages, merely by reason of wanton, oppressive or malicious intent on the part of the agent." In a generally similar context, the Court of Appeals for the Fifth Circuit held that a principal was not subject to double damages under the False Claims Act, 31 U.S.C. § 231, for the fraud of an agent acting without intent to benefit the principal. See United States v. Ridglea State Bank, 357 F.2d 495, 500 (1966) ("[T]he present action is not primarily one for the recovery of a loss caused by an employee, but is one which, if successful, must result in a recovery wholly out of proportion to actual loss. . . . [T]he case calls for the application of the rule . . . that the knowledge or guilty intent of an agent not acting with a purpose to benefit his employer, will not be imputed to the employer"). 8 Hydrolevel argues that Continental Baking Co. v. United States, 281 F.2d 137, 150-151 (CA6 1960), and United States v. Continental Group, Inc., 603 F.2d 444, 468, n. 5 (CA3 1979), support an apparent authority theory of liability in antitrust cases. Yet in Continental Baking the court endorsed an instruction that included an "apparent" authority component on the theory that a corporation must "answer for [an agent's] violations of law which inure to the corporation's benefit." There was no such benefit in this case. Moreover, in Continental Group the court simply affirmed an apparent authority instruction without comment, in a footnote, in a case presenting many other issues. The agents in that case were clearly acting for the benefit of their corporations, and the court may have considered that the apparent authority instruction, if error, was harmless. In any event, the comparative paucity of authority on the question of apparent authority liability in antitrust cases simply underscores that the Court today is making new law. It also is doing so needlessly as ASME was neither tried nor found liable on the basis of apparent authority. 9 Relying on a novel public policy as to nonprofit associations, the Court makes little effort to ascertain the intent of Congress either through examining the legislative history or the common law then existing. Indeed, the Court implies that the agency law of the 19th century and "Victorian" common law are irrelevant. See ante, at 568-569, n. 6. In seeking to understand the Sherman Act, this Court frequently has found it necessary to "delve" into the history of the common law both "Victorian" and from earlier eras. See Standard Oil Co. v. United States, 221 U.S. 1, 51-62, 31 S.Ct. 502, 512-516, 55 L.Ed. 619 (1911). The Civil Rights Acts of the 19th century were also the work of a "Victorian" Congress, yet we have looked both to the legislative history and to the common law when interpreting those Acts. See e.g., Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). 10 In Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 644, n. 17, 101 S.Ct. 2061, 2069, n. 17, 68 L.Ed.2d 500 (1981), the Court stated that the rules of common law in effect at the time the Act was passed were relevant to an inquiry into congressional intent: "[I]t is clear that when the Sherman Act was adopted the common law did not provide a right to contribution among tortfeasors participating in proscribed conduct. One permissible, though not mandatory, inference is that Congress relied on courts' continuing to apply principles in effect at the time of enactment." The contemporary case law is relevant precisely because "Congress . . . did not intend the text of the Sherman Act to delineate the full meaning of the statute or its application in concrete situations. The legislative history makes it perfectly clear that it expected the courts to give shape to the statute's broad mandate by drawing on common-law tradition." National Society of Professional Engineers v. United States, 435 U.S., at 688, 98 S.Ct., at 1363. 11 "Where a corporation or trustees are conducting a charity with funds devoted to that purpose, the charitable organization is not liable for the torts of its agents or servants, as 'it would be against all law and all equity to take those trust funds, so contributed for a special, charitable purpose, to compensate injuries inflicted or occasioned by the negligence of the agents or servants.' " E. Huffcut, Elements of the Law of Agency § 161, pp. 176-177 (1895). 12 In describing the liability of the principal for the torts of the agent, the First Restatement of Agency, published in 1933, cautioned that it did not address "any limitations upon liability because of . . . rules applicable to special classes, such as charitable organizations." Restatement of Agency 458. 13 The complete statement of the rule by Mechem is as follows: "While . . . it is well settled that the principal is liable for the negligent act of his agent, committed in the course of his employment, it has been held in many cases, that he is not liable for the agent's willful or malicious act. . . . "The tendency of modern cases, however, is to attach less importance to the intention of the agent and more to the question whether the act was done within the scope of the agent's employment; and it is believed that the true rule may be said to be that the principal is responsible for the wilful or malicious acts of his agent, if they are done in the course of his employment and within the scope of his authority; but that the principal is not liable for such acts, unless previously expressly authorized, or subsequently ratified, when they are done outside of the course of the agent's employment, and beyond the scope of his authority, as where the agent steps aside from his employment to gratify some personal animosity, or to give vent to some private feeling of his own" (emphasis added, footnotes omitted). Although the concept of within "scope of authority" is not always easy to apply, it is beyond rational doubt that in this case the fraudulent activity of Hardin and James, on behalf of McDonnell & Miller, Inc., was not within the scope of any authority of ASME. In addition, some courts have found that "[a] purpose to benefit the corporation is necessary to bring the agent's acts within the scope of his employment." See United States v. Hilton Hotels Corp., 467 F.2d, at 1006, n. 4. It is just such a purpose that was lacking in this case. Indeed, the "agents" in this case were not acting simply for their own malicious purposes, they were acting on behalf of another principal with interests inimical to those of ASME. It is far from clear under principles of agency law that Hardin and James are properly described as the "agents" of ASME when they act to serve a different principal and without any intention of benefiting ASME. See Mechem § 67 ("A person may act as agent of two or more principals . . . if his duties to each are not such as to require . . . incompatible things"). The Court suggests that there was a division among the state courts on the question of the principal's liability for the malicious acts of an agent. See ante, at 568-569, n. 6. But there was no division in the federal courts, the courts charged with enforcement of the Sherman Act. In any event, surely the point is not whether every state court recognized the rule stated by this Court in Friedlander v. Texas & Pacific R. Co., 130 U.S. 416, 9 S.Ct. 570, 32 L.Ed. 991 (1889). Rather, if there was any uncertainty as to the liability of a commercial principal for the torts of an agent acting in the course of employment, how much clearer must it be that a nonprofit, voluntary association would not have been held liable in treble damages for the acts of an agent acting with apparent authority only. 14 The Court notes that Friedlander was later overruled by Gleason v. Seaboard Air Line R. Co., 278 U.S. 349, 49 S.Ct. 161, 73 L.Ed. 415 (1929). The relevance of this fact to Congress' intentions is not clear to me. There is "no federal general common law." Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). There is no federal general law of agency. Rather we are engaged here in an exercise in statutory construction. Cf. 21 Cong.Rec. 3149 (1890) (remarks of Sen. Morgan) ("It is very true that we use common-law terms here and common-law definitions in order to define an offense which is in itself comparatively new, but it is not a common-law jurisdiction that we are conferring upon the circuit courts of the United States," quoted in Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S., at 644, 101 S.Ct., at 2069). 15 The Court responds by citing to several state law decisions indicating that in some States a principal might have been held liable in punitive damages for the acts of an agent. See ante, at 575, n. 14. I believe the Court overstates the extent to which 19th-century state courts imposed punitive damages on the principal for the deliberate torts of an agent. See Mechem, § 751; cf. Mayo Hotel Co. v. Danciger, 143 Okla. 196, 200, 288 P. 309, 312 (1930) ("There are . . . respectable authorities, some of them recent ones, definitely holding that a corporation cannot be subjected to exemplary damages because of the malicious . . . acts of its agents and servants where such acts are not authorized or afterwards ratified . . . Many of the state courts, and a majority of the federal courts, expressly adhere to that doctrine") (emphasis added). More significantly, the Court does not make clear which, if any, of the state decisions it relies upon held the principal liable for punitive damages upon the apparent authority of an agent acting without any intention of benefiting the principal. I had thought that this was the question before us. And again the Court misses the basic point: If the rule of liability adopted by the Court today would have seemed questionable in 1890 even as applied to a commercial enterprise, can there be any basis for believing that Congress intended such an extreme rule of liability to be applied to voluntary, nonprofit associations? 16 Damages were awarded against ASME in an amount of $7.5 million. By contrast, McDonnell & Miller settled the suit for less than a million dollars. See n. 1, supra. The majority's contention that "a plaintiff will prefer to bring a corporate defendant like M&M (ITT) before a jury," ante, at 574, n. 13, is not borne out by this case. If the Court has some other case in mind, it does not cite to it. 17 The Court's argument that the imposition of treble damages will advance antitrust enforcement has a hollow ring in the context of a membership, nonprofit organization. Organizations of this kind normally function through committees composed—as in this case—of volunteers who are not employees, serve only at infrequent intervals, and are virtually uncontrollable by what usually is a small headquarters staff. The Court suggests that voluntary organizations can "take steps to reduce the likelihood that antitrust violations like the one that occurred in this case will take place in the future." Ibid. The Court then refers to "new procedures" adopted by ASME, and criticizes my dissent for refusing "to accept that ASME and other such organizations can react to potential antitrust liability by making their associations less subject to fraudulent manipulation." Ibid. It would be enlightening if the Court would explain how such an association can protect itself even from "mere tort" liability, see ante, at 569, n. 6, much less the treble-damages liability imposed in this case, in light of the Court's adoption of the apparent authority theory of liability. Review procedures well may be helpful to prevent mistakes made in good faith on behalf of an association. But no set of rules and regulations, and no procedures however elaborate, can protect adequately against fraud and disloyalty. In this case, for example, if ASME had required approval by a review committee or even by its governing body before the release of each of the thousands of ruling letters, a member bent on fraud could forge evidence or otherwise circumvent most safeguards. In practice, a rule of apparent authority can be a rule of strict liability as the Court today holds in this case. In the context of a loosely structured, voluntary nonprofit association it may be wholly impractical to adopt any measures that will lessen substantially the likelihood of liability, and if there is liability the Court also would impose punitive damages. 18 The intersection of the law of agency and vicarious liability with the law of conspiracy makes this a complex case. Yet the Court does not recognize this complexity. It so expands the concept of vicarious liability as to leave little content, in this case, to the requirement in § 1 of the Sherman Act that antitrust plaintiffs demonstrate a contract, combination, or conspiracy. Indeed, the Court never identifies who conspired with whom. Did James—acting for ASME—conspire with Hardin—acting for McDonnell & Miller, Inc., and Hartford Steam Boiler Inspection and Insurance Co.? Or was it the other way around? Could it be said, under the Court's theory, that James had conspired with himself—as a double agent—thereby committing both of his "principals" to an antitrust conspiracy? In my view, it makes more sense to view the matter as a conspiracy between the agents of McDonnell & Miller, Inc. and Hartford Steam Boiler Inspection and Insurance Co. The Court's theory makes possible ratification by ASME irrelevant. In this light, ASME was as much a victim of this conspiracy as Hydrolevel. 19 It is relevant to note that a nonprofit organization cannot reduce the burden of a treble-damages award by deducting the award as a business expense. See P. Areeda & D. Turner, Antitrust Law § 311a (1978) ("treble damages are generally a deductible business expense for federal income tax purposes").

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456 U.S. 444 102 S.Ct. 1874 72 L.Ed.2d 249 Joseph GREENE, et al., Appellantsv.Linnie LINDSEY, et al. No. 81-341. Argued Feb. 23, 1982. Decided May 17, 1982. Syllabus A Kentucky statute permits service of process in forcible entry or detainer actions to be made by posting a summons "in a conspicuous place on the premises," if the defendant or a member of the defendant's family over 16 years of age cannot be found on the premises. Service of process under this statute was made on appellee tenants in a public housing project by posting a summons on the door of each of their apartments. Appellees claim that they never saw the summonses and did not know of the eviction proceedings until they were served with writs of possession, executed after default judgments had been entered against them and their opportunity for appeal had lapsed. They then filed a class action in Federal District Court against appellant public officials, seeking declaratory and injunctive relief under 42 U.S.C. § 1983 and alleging that the notice procedures employed violated the Due Process Clause of the Fourteenth Amendment. The District Court granted summary judgment for appellants, holding that such notice procedures did not deny due process. The Court of Appeals reversed. Held : In failing to afford appellees adequate notice of the proceedings against them before issuing final orders of eviction, the State deprived them of property without due process of law required by the Fourteenth Amendment. Pp. 449-456. (a) "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865. Pp. 1877-1878. (b) In light of the fact that appellees were deprived of a significant interest in property and, indeed, of the right to continued residence in their homes, it does not suffice to recite that because the action was in rem, it was only necessary to serve notice "upon the thing itself." The sufficiency of the notice must be tested with reference to its ability to inform people of the pendency of proceedings that affect their interests. Pp. 450-451. (c) Notices posted on the doors of tenants' apartments were "not infrequently" removed before they could be seen by the tenants. Whatever the efficacy of posting notice on a door of a person's home in many cases, it is clear that, in the circumstances of this case, merely posting notice on the apartment door did not satisfy minimum standards of due process. Pp. 453-454. (d) Neither the statute nor the practice of process servers provides for even a second attempt at personal service. The failure to effect personal service on the first visit hardly suggests that the tenant has abandoned his interest in the apartment such that mere pro forma notice might be constitutionally adequate. P. 454. (e) Notice by mail in the circumstances of this case would go a long way toward providing the constitutionally required assurance that the State has not allowed its power to be invoked against a person who has had no opportunity to present a defense. Pp. 455-456. 649 F.2d 425, 6 cir., affirmed. William L. Hoge, III, Louisville, Ky., for appellants. Robert Frederick Smith, Barry L. Master, Lousiville, Ky., for appellees. Justice BRENNAN delivered the opinion of the Court. 1 A Kentucky statute provides that in forcible entry or detainer actions, service of process may be made under certain circumstances by posting a summons on the door of a tenant's apartment. The question presented is whether this statute, as applied to tenants in a public housing project, fails to afford those tenants the notice of proceedings initiated against them required by the Due Process Clause of the Fourteenth Amendment. 2 * Appellees Linnie Lindsey, Barbara Hodgens, and Pamela Ray are tenants in a Louisville, Ky., housing project. Appellants are the Sheriff of Jefferson County, Ky., and certain unnamed Deputy Sheriffs charged with responsibility for serving process in forcible entry and detainer actions. In 1975, the Housing Authority of Louisville initiated detainer actions against each of appellees, seeking repossession of their apartments. Service of process was made pursuant to Ky.Rev.Stat. § 454.030 (1975), which states: 3 "If the officer directed to serve notice on the defendant in forcible entry or detainer proceedings cannot find the defendant on the premises mentioned in the writ, he may explain and leave a copy of the notice with any member of the defendant's family thereon over sixteen (16) years of age, and if no such person is found he may serve the notice by posting a copy thereof in a conspicuous place on the premises. The notice shall state the time and place of meeting of the court." 4 In each instance, notice took the form of posting a copy of the writ of forcible entry and detainer on the door of the tenant's apartment.1 Appellees claim never to have seen these posted summonses; they state that they did not learn of the eviction proceedings until they were served with writs of possession, executed after default judgments had been entered against them, and after their opportunity for appeal had lapsed. 5 Thus without recourse in the state courts, appellees filed this suit as a class action in the United States District Court for the Western District of Kentucky, seeking declaratory and injunctive relief under 42 U.S.C. § 1983. They claimed that the notice procedure employed as a predicate to these eviction proceedings did not satisfy the minimum standards of constitutionally adequate notice described in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), and that the Commonwealth of Kentucky had thus failed to afford them the due process of law guaranteed by the Fourteenth Amendment. Named as defendants were the Housing Authority of Louisville, several public officials charged with responsibility over particular Louisville public housing projects, Joseph Greene, the Jefferson County Sheriff, and certain known and unknown Deputy Sheriffs. 6 On cross-motions for summary judgment, the District Court granted judgment for appellants. In an unreported opinion, the court noted that some 70 years earlier, in Weber v. Grand Lodge of Kentucky, F. & A. M., 169 F. 522 (1909), the Court of Appeals for the Sixth Circuit had held that constructive notice by posting on the door of a building, pursuant to the predecessor statute to § 454.030, provided an adequate constitutional basis upon which to commence an eviction action, on the ground that it was reasonable for the State to presume that a notice posted on the door of the building in dispute would give the tenant actual notice in time to contest the action. Although the District Court recognized that "conditions have changed since the decision in Weber . . . and . . . that there is undisputed testimony in this case that notices posted on the apartment doors of tenants are often removed by other tenants," App. 41-42, the court nevertheless concluded that the procedures employed did not deny due process in light of the fact "that posting only comes into play after the officer directed to serve notice cannot find the defendant on the premises," id., at 42. 7 The Court of Appeals for the Sixth Circuit reversed the grant of summary judgment in favor of appellants and remanded the case for further proceedings. 649 F.2d 425 (1981). Acknowledging that its decision in Weber directed a contrary result, the Court of Appeals examined the doctrinal basis of that decision, and concluded that it rested in part on distinctions between actions in rem and actions in personam that had been drawn in cases such as Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878); Huling v. Kaw Valley Railway & Improvement Co., 130 U.S. 559, 32 L.Ed. 1045 (1889); Arndt v. Griggs, 134 U.S. 316, 10 S.Ct. 557, 33 L.Ed. 918 (1890); Ballard v. Hunter, 204 U.S. 241, 27 S.Ct. 261, 51 L.Ed. 461 (1907); and Longyear v. Toolan, 209 U.S. 414, 28 S.Ct. 506, 52 L.Ed. 859 (1908), and that had been substantially undercut by intervening decisions of this Court. In overruling Weber, the Court of Appeals cited International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), Mullane, supra, and Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), as cases calling for a more realistic appraisal of the adequacy of process provided by the State. Turning to the circumstances of this case and the procedures contemplated by § 454.030, the Court of Appeals noted that while there may have been "a time when posting provided a surer means of giving notice than did mailing, [t]hat time has passed. The uncontradicted testimony by process servers themselves that posted summonses are not infrequently removed by persons other than those served constitutes effective confirmation of the conclusion that notice by posting 'is not reasonably calculated to reach those who could easily be informed by other means at hand,' " 649 F.2d, at 428, quoting Mullane, supra, at 319, 70 S.Ct., at 659.2 The court held, therefore, that the notice provided pursuant to § 454.030 was constitutionally deficient. We noted probable jurisdiction, 454 U.S. 938, 102 S.Ct. 473, 70 L.Ed.2d 246 (1981), and now affirm. II A. 8 "The fundamental requisite of due process of law is the opportunity to be heard." Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). And the "right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest," Mullane, supra, at 314, 70 S.Ct., at 657. Personal service guarantees actual notice of the pendency of a legal action; it thus presents the ideal circumstance under which to commence legal proceedings against a person, and has traditionally been deemed necessary in actions styled in personam. McDonald v. Mabee, 243 U.S. 90, 92, 37 S.Ct. 343, 344, 61 L.Ed. 608 (1917). Nevertheless, certain less rigorous notice procedures have enjoyed substantial acceptance throughout our legal history; in light of this history and the practical obstacles to providing personal service in every instance, we have allowed judicial proceedings to be prosecuted in some situations on the basis of procedures that do not carry with them the same certainty of actual notice that inheres in personal service. But we have also clearly recognized that the Due Process Clause does prescribe a constitutional minimum: "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane, 339 U.S., at 314, 70 S.Ct. at 657 (emphasis added). It is against this standard that we evaluate the procedures employed in this case. B 9 Appellants argue that because a forcible entry and detainer action is an action in rem, notice by posting is ipso facto constitutionally adequate. Appellees concede that posting has traditionally been deemed appropriate for in rem proceedings, but argue that detainer actions can now encompass more than the simple issue of the tenant's continued right to possession, and that they therefore require the more exacting forms of notice customarily provided for proceedings in personam. Appellants counter by conceding that if the particular detainer proceeding was one in which the landlord sought to recover past due rent, personal service would be required by Kentucky law, but argue that such claims are unusual in such proceedings, and that in the case before us the landlord claimed only a right to recover possession. Tr. of Oral Arg. 19-21. 10 As in Mullane, we decline to resolve the constitutional question based upon the determination whether the particular action is more properly characterized as one in rem or in personam. 339 U.S., at 312, 70 S.Ct., at 656. See Shaffer v. Heitner, supra, at 206, 97 S.Ct., at 2580. That is not to say that the nature of the action has no bearing on a constitutional assessment of the reasonableness of the procedures employed. The character of the action reflects the extent to which the court purports to extend its power, and thus may roughly describe the scope of potential adverse consequences to the person claiming a right to more effective notice. But " '[a]ll proceedings, like all rights, are really against persons.' "3 In this case, appellees have been deprived of a significant interest in property: indeed, of the right to continued residence in their homes.4 In light of this deprivation, it will not suffice to recite that because the action is in rem, it is only necessary to serve notice "upon the thing itself."5 The sufficiency of notice must be tested with reference to its ability to inform people of the pendency of proceedings that affect their interests. In arriving at the constitutional assessment, we look to the realities of the case before us: In determining the constitutionality of a procedure established by the State to provide notice in a particular class of cases, "its effect must be judged in the light of its practical application to the affairs of men as they are ordinarily conducted." North Laramie Land Co. v. Hoffman, 268 U.S. 276, 283, 45 S.Ct. 491, 494, 69 L.Ed. 953 (1925). 11 It is, of course, reasonable to assume that a property owner will maintain superintendence of his property, and to presume that actions physically disturbing his holdings will come to his attention. See Mullane, supra, at 316, 70 S.Ct., at 658.6 The frequent restatement of this rule impresses upon the property owner the fact that a failure to maintain watch over his property may have significant legal consequences for him, providing a spur to his attentiveness, and a consequent reinforcement to the empirical foundation of the principle. Upon this understanding, a State may in turn conclude that in most cases, the secure posting of a notice on the property of a person is likely to offer that property owner sufficient warning of the pendency of proceedings possibly affecting his interests. 12 The empirical basis of the presumption that notice posted upon property is adequate to alert the owner or occupant of property of the pendency of legal proceedings would appear to make the presumption particularly well founded where notice is posted at a residence. With respect to claims affecting the continued possession of that residence, the application of this presumption seems particularly apt: If the tenant has a continuing interest in maintaining possession of the property for his use and occupancy, he might reasonably be expected to frequent the premises; if he no longer occupies the premises, then the injury that might result from his not having received actual notice as a consequence of the posted notice is reduced. Short of providing personal service, then, posting notice on the door of a person's home would, in many or perhaps most instances, constitute not only a constitutionally acceptable means of service, but indeed a singularly appropriate and effective way of ensuring that a person who cannot conveniently be served personally is actually apprised of proceedings against him. 13 But whatever the efficacy of posting in many cases, it is clear that, in the circumstances of this case, merely posting notice on an apartment door does not satisfy minimum standards of due process. In a significant number of instances, reliance on posting pursuant to the provisions of § 454.030 results in a failure to provide actual notice to the tenant concerned. Indeed, appellees claim to have suffered precisely such a failure of actual notice. As the process servers were well aware, notices posted on apartment doors in the area where these tenants lived were "not infrequently" removed by children or other tenants before they could have their intended effect.7 Under these conditions, notice by posting on the apartment door cannot be considered a "reliable means of acquainting interested parties of the fact that their rights are before the courts." Mullane, 339 U.S., at 315, 70 S.Ct., at 657. 14 Of course, the reasonableness of the notice provided must be tested with reference to the existence of "feasible and customary" alternatives and supplements to the form of notice chosen. Ibid. In this connection, we reject appellants' characterization of the procedure contemplated by § 454.030 as one in which " 'posting' is used as a method of service only as a last resort." Brief for Appellants 7. To be sure, the statute requires the officer serving notice to make a visit to the tenant's home and to attempt to serve the writ personally on the tenant or some member of his family. But if no one is at home at the time of that visit, as is apparently true in a "good percentage" of cases,8 posting follows forthwith. Neither the statute, nor the practice of the process servers, makes provision for even a second attempt at personal service, perhaps at some time of day when the tenant is more likely to be at home. The failure to effect personal service on the first visit hardly suggests that the tenant has abandoned his interest in the apartment such that mere pro forma notice might be held constitutionally adequate. Cf. Mullane, 339 U.S., at 317-318, 70 S.Ct., at 658. 15 As noted by the Court of Appeals, and as we noted in Mullane, the mails provide an "efficient and inexpensive means of communication," id., at 319, 70 S.Ct., at 659, upon which prudent men will ordinarily rely in the conduct of important affairs, id., at 319-320, 70 S.Ct., at 659. Notice by mail in the circumstances of this case would surely go a long way toward providing the constitutionally required assurance that the State has not allowed its power to be invoked against a person who has had no opportunity to present a defense despite a continuing interest in the resolution of the controversy.9 Particularly where the subject matter of the action also happens to be the mailing address of the defendant, and where personal service is ineffectual, notice by mail may reasonably be relied upon to provide interested persons with actual notice of judicial proceedings. We need not go so far as to insist that in order to "dispense with personal service the substitute that is most likely to reach the defendant is the least that ought to be required," McDonald v. Mabee, 243 U.S., at 92, 37 S.Ct., at 344, in order to recognize that where an inexpensive and efficient mechanism such as mail service is available to enhance the reliability of an otherwise unreliable notice procedure, the State's continued exclusive reliance on an ineffective means of service is not notice "reasonably calculated to reach those who could easily be informed by other means at hand." Mullane, supra, at 319, 70 S.Ct., at 659.10 III 16 We conclude that in failing to afford appellees adequate notice of the proceedings against them before issuing final orders of eviction, the State has deprived them of property without the due process of law required by the Fourteenth Amendment. The judgment of the Court of Appeals is therefore 17 Affirmed. 18 Justice O'CONNOR, with whom THE CHIEF JUSTICE and Justice REHNQUIST join, dissenting. 19 Today, the Court holds that the Constitution prefers the use of the Postal Service to posted notice. The Court reaches this conclusion despite the total absence of any evidence in the record regarding the speed and reliability of the mails. The sole ground for the Court's result is the scant and conflicting testimony of a handful of process servers in Kentucky. On this flimsy basis, the Court confidently overturns the work of the Kentucky Legislature and, by implication, that of at least 10 other States. I must respectfully dissent. 20 At a minimum, the Fourteenth Amendment requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). The question before the Court is whether the notice provided by Kentucky's statute meets this standard. In answering that question, the first "circumstances" to be considered are the nature and purpose of the action for which notice is required. 21 Kentucky's forcible entry and detainer action is a summary proceeding for quickly determining whether or not a landlord has the right to immediate possession of leased premises and, if so, for enabling the landlord speedily to obtain the property from the person in wrongful possession. Ky.Rev.Stat. §§ 383.200, 383.210 (1972). As this Court has recognized, such circumstances call for special procedures: 22 "There are unique factual and legal characteristics of the landlord-tenant relationship that justify special statutory treatment inapplicable to other litigants. The tenant is, by definition, in possession of the property of the landlord; unless a judicially supervised mechanism is provided for what would otherwise be swift repossession by the landlord himself, the tenant would be ably to deny the landlord the rights of income incident to ownership by refusing to pay rent and by preventing sale or rental to someone else. Many expenses of the landlord continue to accrue whether a tenant pays his rent or not. Speedy adjudication is desirable to prevent subjecting the landlord to undeserved economic loss and the tenant to unmerited harassment and dispossession when his lease or rental agreement gives him the right to peaceful and undisturbed possession of the property." Lindsey v. Normet, 405 U.S. 56, 72-73, 92 S.Ct. 862, 873, 31 L.Ed.2d 36 (1972). 23 The means chosen for making service of process, therefore, must be prompt and certain, for otherwise the principal purpose of a forcible entry and detainer action could be thwarted before the judicial proceedings even began. 24 The Kentucky statute meets this need. It directs the process server to attempt personal service on the tenant at his residence. Ky.Rev.Stat. § 454.030 (1975). If the process server cannot find the tenant on the premises, the statute directs the server to explain and leave a copy of the notice with a family member over the age of 16. Ibid. If both of these attempts fail, Kentucky authorizes the server, as a last resort, to post a copy of the notice in a conspicuous place on the premises. Ibid. 25 As the Court recognizes, notice procedures like Kentucky's, though "less rigorous" than mandatory personal service, nonetheless "have enjoyed substantial acceptance throughout our legal history." Ante, at 449. The weight of historical precedent is reinforced by the collective wisdom of the legislatures of the at least 11 States authorizing notice in summary eviction proceedings solely by posting or by leaving the notice at the tenant's residence.1 The Court itself acknowledges that "posting notice on the door of a person's home would, in many or perhaps most instances, constitute . . . a singularly appropriate and effective way of ensuring that a person who cannot conveniently be served personally is actually apprised of proceedings against him." Ante, at 452-453 26 The Court nonetheless rejects these established procedures as unconstitutional, though it does not cite a single case, other than the decision below, supporting its position that notice by posting is constitutionally inadequate in summary eviction proceedings. Instead, the Court relies solely on the deposition testimony of a few Kentucky process servers. 27 The testimony is hardly compelling. For example, one process server, Mr. S. Carter Bacon, reported having seen children in the Village West housing development pull down posted writs "probably a couple of times." App. 80; App. in No. 79-3477 (CA6), p. 103. The Court neglects to mention, however, that another process server, Mr. Gilbert Brutscher, cast doubt on Mr. Bacon's testimony by stating: 28 "I had been warned beforehand that, by Mr. Bacon, Carter Bacon, that he suspected—he wasn't certain, but he suspected that on some occasions the Writs had been torn off the doors by kids. This is what he told me. Whether that is true or not, I don't know. And I don't think that he observed that, and the six months I was working at it there was no occasion where I saw anyone tear the Writs off of the door." Id., at 112-113. 29 The Court also neglects to mention that another process server testified that in order to avoid problems with children, the process servers "always put [the writs] up high. So we never had any problems with that." App. 74. Corroborating this testimony, moreover, is the testimony of yet another process server, who asserted: "we always try to put the paper up above where, a, say a small child can't reach it." App. in No. 79-3477 (CA6), p. 74. This server, asked whether he had "had complaints about small children ripping them off," answered that he had never had a complaint and had never seen a child try to rip a notice off. Ibid. 30 Plainly, such conflicting testimony falls well short of what this Court should require before rushing to scrap Kentucky's considered legislative judgment that, as a last resort, posted notice is an appropriate form of service of process for forcible entry and detainer actions. 31 The Court, however, holds that notice via the mails is so far superior to posted notice that the difference is of constitutional dimension.2 How the Court reaches this judgment remains a mystery, especially since the Court is unable, on the present record, to evaluate the risks that notice mailed to public housing projects might fail due to loss, misdelivery, lengthy delay, or theft. Furthermore, the advantages of the mails over posting, if any, are far from obvious. It is no secret, after all, that unattended mailboxes are subject to plunder by thieves. Moreover, unlike the use of the mails, posting notice at least gives assurance that the notice has gotten as far as the tenant's door. 32 In sum, the Court has chosen to overturn Kentucky's procedures on the basis of a wholly inadequate record. In so doing, the Court apparently indulges a presumption that the state legislation challenged here is unconstitutional until proven otherwise. Regrettably, the Court seems to forget that we have long since discarded the concept that "due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely." Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93 (1963). I respectfully dissent. 1 "Posting" refers to the practice of placing the writ on the property by use of a thumbtack, adhesive tape, or other means. App. 74, 77 (deposition of process servers). Appellants describe the usual method of effecting service pursuant to § 454.030 in the following terms: "The officer of the court who is charged with serving notice in a forcible entry and detainer action, usually a Jefferson County Deputy Sheriff, takes the following steps in notifying a tenant. First, the officer goes to the apartment in an effort to effectuate personal in-hand service. Second, if the named tenant is absent or will not appear at the door, personal in-hand service is made on any member of the tenant's family over sixteen years of age. Finally, if no one answers the door, a copy of the notice is posted on the premises, usually the door." Brief for Appellants 3. 2 The Court of Appeals concluded that "[r]equiring Kentucky to provide notice by mail when personal service proves infeasible will not be overly burdensome. The cost will be minimal, and the state's conceded interest in providing a summary procedure for settlement of landlord-tenant disputes will not be seriously circumscribed." 649 F.2d, at 428. The court then noted with approval the provisions of the New York counterpart of § 454.030, which provides that when notice is served by posting, a copy of the petition must be sent by registered or certified mail within a day of the posting. Ibid., citing Velazquez v. Thompson, 451 F.2d 202, 205 (CA2 1971). 3 Shaffer v. Heitner, 433 U.S. 186, 207, n.22, 97 S.Ct., at 2581, n.22 (1977), quoting Tyler v. Court of Registration, 175 Mass. 71, 76, 55 N.E. 812, 814 (Holmes, C. J.), writ of error dism'd, 179 U.S. 405, 21 S.Ct. 206, 45 L.Ed. 252 (1900). 4 The dissent directs our attention to the "nature and purpose," of Kentucky's forcible entry and detainer action. Post, at 457. Such proceedings are designed to offer an expeditious means of determining who is entitled to retain possession of an apartment. But that hardly explains why we may dispense with the constitutional requirement of adequate notice. After all, detainer proceedings, while in some sense "summary," are proceedings in which issues of fact and law are to be resolved, and important interests in property determined. We can agree with the dissent's observation that the "means chosen for making service of process . . . must be prompt and certain." ibid. But it is difficult to see how, from the perspective of the landlord, any of the likely supplements to the form of service currently provided under § 454.030 will render the procedure markedly less prompt or certain. More significantly, from the perspective of the tenant, it is difficult to see how a means of serving process that fails to afford actual notice in a "not insubstantial" number of cases can be deemed either prompt or certain. 5 The Mary, 9 Cranch 126, 144 (1815). 6 As we noted in Mullane : "The ways of an owner with tangible property are such that he usually arranges means to learn of any direct attack upon his possessory or proprietary rights. Hence, . . . entry upon real estate in the name of law may reasonably be expected to come promptly to the owner's attention. . . . A state may indulge the assumption that one who has left tangible property in the state either has abandoned it, in which case proceedings against it deprive him of nothing, . . . or that he has left some caretaker under a duty to let him know that it is being jeopardized." 339 U.S., at 316, 70 S.Ct., at 658. Of course, the Mullane discussion of the special notice rules with respect to proceedings affecting property ownership focused on the forms of notice that might be appropriate as a supplement to the direct disturbance of the property itself. But where the State has reason to believe the premises to be occupied or under the charge of a caretaker, notice posted on the premises, if sufficiently apparent, is itself a form of disturbance, likely to come to the attention of the occupants or the caretaker. 7 The depositions before the District Court included the following statements by the process servers: "The children—we had problems with children. They would take [the writs] off. "They never took them off when we were present, but we, you know, assume—the Housing Authority told us that they would take them off, so we always put them up high." App. 74. "Q. Did you ever see kids pulling them off? "A. Yes. "Q. You did? "A. Uh-huh. "Q. Did you see many? "A. No, not too many. I did see it in one place over there. "Q. Where was that? "A. Village West. "Q. How many times did you see that happen? "A. Well, probably a couple of times." Id., at 80. "Q. . . . Were you aware of there being any problem with children ripping the Writs off? "A. Oh, we had plenty of trouble. "Q. You had trouble? "A. With kids, yeah. Yeah. "Q. Did you ever see kids ripping them off? "A. Yeah. I have seen them take them off of the door and I would go back and tell them to put it back. They don't know. They didn't know. They just— * * * * * "Q. Were there any particular places where you saw kids ripping them off the doors? "A. Well most of that was in Village West." Id., at 82. 8 Id., at 76 (deposition of process server). 9 The dissent apparently wishes to dispute the District Court's finding that "notices posted on apartment doors are often removed," and further questions our reliance on the observation in Mullane that the mails are a reliable means of communication—in light of its own observation that "unattended mailboxes are subject to plunder." Post, at 460. The dissent misconstrues the constitutional standard. In light of the findings of the courts below, we hold only that posted notice pursuant to § 454.030 is constitutionally inadequate. It is not our responsibility to prescribe the form of service that the Commonwealth should adopt. But even conceding that process served by mail is far from the ideal means of providing the notice the Due Process Clause of the Fourteenth Amendment requires, we have no hesitation in concluding that posted service accompanied by mail service, is constitutionally preferable to posted service alone. 10 "Where the names and post-office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency." 339 U.S., at 318, 70 S.Ct., at 659. See Schroeder v. City of New York, 371 U.S. 208, 213, 83 S.Ct. 279, 282, 9 L.Ed.2d 255 (1962). 1 See Ala.Code §§ 6-6-332, 35-9-82 (1975); Colo.Rev.Stat. § 13-40-112 (1973); Fla.Stat. § 48.183 (1979); Kan.Stat.Ann. § 61-1805 (1976); Ky.Rev.Stat. § 454.030 (1975); La.Code Civ.Proc.Ann., Art. 4703 (West 1961); Miss.Code Ann. § 89-7-33 (1972); Neb.Rev.Stat. § 25-508 (1979); N.H.Rev.Stat.Ann. §§ 510:2, 540:5 (Supp.1979); N.C.Gen.Stat. § 42-29 (1976); W.Va.Code § 56-2-1 (1966), W.Va.Rule Civ.Proc. 4(d)(1) (1982). 2 The Court gives lipservice to the principle that "[i]t is not our responsibility to prescribe the form of service that [Kentucky] should adopt," ante, at 455, n.9, but then goes on to do just that, first by explaining to the state legislature that, unlike notice by posting, notice by mail "would surely go a long way toward" satisfying the Court, ante, at 455, and then by remarking that, in the Court's view, the combination of posted service and mail service would be "constitutionally preferable" to posted service alone, ante, at 455, n.9.

34

456 U.S. 615 102 S.Ct. 2054 72 L.Ed.2d 376 FEDERAL BUREAU OF INVESTIGATION et al., Petitionersv.Howard S. ABRAMSON. No. 80-1735. Argued Jan. 11, 1982. Decided May 24, 1982. Syllabus Respondent journalist filed a request with the Federal Bureau of Investigation (FBI) pursuant to the Freedom of Information Act (FOIA) for documents relating to the FBI's transmittal to the White House of information concerning individuals who had criticized the Presidential administration. The FBI denied the request under, inter alia, Exemption 7(C) of the FOIA, which exempts from disclosure "investigatory records compiled for law enforcement purposes" when the release of such records would "constitute an unwarranted invasion of personal privacy." After unsuccessful administrative appeals, respondent filed suit in Federal District Court to enjoin the FBI from withholding the requested documents. While the suit was pending, the FBI provided respondent with certain documents, and respondent then modified his request to seek only a certain cover letter from the FBI to the White House, along with the accompanying "name check" summaries containing information culled from FBI files on the individuals in question, and certain attached documents. The District Court granted the FBI's motion for a summary judgment with respect to material withheld pursuant to Exemption 7(C). The Court of Appeals reversed, holding that except for those documents attached to the "name check" summaries that may have been duplicates of FBI files, the FBI had failed to show that the documents were compiled for law enforcement purposes, and that accordingly Exemption 7(C) was unavailable even though disclosure would constitute an unwarranted invasion of personal privacy. Held : Information contained in records originally compiled for law enforcement purposes does not lose its Exemption 7 exemption where such information is reproduced or summarized in a new document prepared for other than law enforcement purposes, but continues to meet Exemption 7's threshold requirement of being compiled for law enforcement purposes. Pp. 621-632. (a) Although the Court of Appeals' construction of Exemption 7's threshold requirement as turning on the purpose for which the document sought to be withheld was prepared, not on the purpose for which the material included in the document was collected, is a plausible one on the face of the statute, it is not the only reasonable construction of the statutory language. The statutory language is reasonably construable to protect that part of an otherwise nonexempt compilation that essentially reproduces and is substantially the equivalent of all or part of an earlier record made for law enforcement uses. This construction more accurately reflects Congress' intention, is more consistent with the Act's structure, and more fully serves its purposes. Pp. 623-629. (b) The legitimate interests in protecting information from disclosure under Exemption 7 are not satisfied by other exemptions, such as Exemption 6, which protects against unwarranted invasion of personal privacy, and Exemption 5, which protects from disclosure predecisional communications within an agency and other internal documents. The reasons for an exemption under Exemption 7 remain intact even though information in a law enforcement record is recompiled in another document for other than law enforcement purposes. Pp. 629-630. (c) The result in this case is consistent with the principle that FOIA exemptions are to be narrowly construed, since there is no request that Exemption 7 be expanded to agencies or material not envisioned by Congress. Pp.630-631 (d) Congress' concern with possible misuse of governmental information for partisan political activity is not the equivalent of a mandate to release any information that might document such activity. Once it is established that information was compiled pursuant to a legitimate law enforcement investigation and that disclosure of such information would lead to one of the listed harms under Exemption 7, the information is exempt. Congress thus created a scheme of categorical exclusion and did not invite a judicial weighing of the benefits and evils of disclosure on a case-by-case basis. P. 631 212 U.S.App.D.C. 58, 658 F.2d 806, reversed and remanded. Kenneth S. Geller, Washington, D. C., for petitioners. Sharon T. Nelson, Washington, D. C., for respondent. Justice WHITE delivered the opinion of the Court. 1 The Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976 ed. and Supp.IV), does not require the disclosure of "investigatory records compiled for law enforcement purposes" when the release of such records would interfere with effective law enforcement, impede the administration of justice, constitute an unwarranted invasion of privacy, or produce certain other specified consequences. § 552(b)(7).1 The sole question presented in this case is whether information contained in records compiled for law enforcement purposes loses that exempt status when it is incorporated into records compiled for purposes other than law enforcement. 2 * Respondent Howard Abramson is a professional journalist interested in the extent to which the White House may have used the Federal Bureau of Investigation (FBI) and its files to obtain derogatory information about political opponents. On June 23, 1976, Abramson filed a request pursuant to FOIA for specific documents relating to the transmittal from the FBI to the White House in 1969 of information concerning particular individuals who had criticized the administration.2 The Bureau denied the request on grounds that the information was exempt from disclosure pursuant to § 552(b)(6) (Exemption 6) and § 552(b)(7)(C) (Exemption 7(C)), both of which protect against unwarranted invasions of personal privacy. Abramson, believing his first request was flawed by its specificity, filed a much broader request,3 which was denied for failure to "reasonably describe the records sought" as required by § 552(a)(3). 3 In December 1977, after unsuccessfully appealing both denials within the agency, Abramson filed suit in the United States District Court for the District of Columbia to enjoin the FBI from withholding the requested records. While the suit was pending, the FBI provided Abramson with 84 pages of documents, some intact and some with deletions. The District Court rejected the Bureau's assertions that all deleted material was exempt. Abramson v. U.S. Dept. of Justice, Civ. Action No. 77-2206 (Jan. 3, 1979). In response, the FBI submitted an affidavit to the District Court explaining the justification for each deletion. In light of the released material and the Bureau's affidavit, Abramson modified his request, seeking only the material withheld from a single document consisting of a one-page memorandum from J. Edgar Hoover to John D. Ehrlichman, together with approximately 63 pages of "name check" summaries and attached documents. The "name check" summaries contained information, culled from existing FBI files, on 11 public figures. 4 The District Court found that the FBI had failed to show that the information was compiled for law enforcement rather than political purposes, but went on to rule that Exemption 7(C) was validly invoked by the Government because disclosure of the withheld materials would constitute an unwarranted invasion of personal privacy. The District Court thus granted the Government's motion for summary judgment with respect to material withheld pursuant to Exemption 7(C). Abramson v. FBI, Civ. Action No. 77-2206 (Nov. 30, 1979). 5 The Court of Appeals reversed, holding that with the exception of those documents attached to the summaries that may have been duplicates of original FBI files,4 the Government had failed to sustain its burden of demonstrating that the documents were compiled for law enforcement purposes, and that Exemption 7(C) was therefore unavailable even though disclosure would constitute an unwarranted invasion of personal privacy. 212 U.S.App.D.C. 58, 658 F.2d 806 (1980). To reach this conclusion, the Court of Appeals rejected the Government's claim that Exemption 7(C) was applicable because the "name check" summaries contained information taken from documents in FBI files that had been created for law enforcement purposes. Thus, with the exception noted, the Government's invocation of Exemption 7(C) was rejected. Because this interpretation of the Exemption has important ramifications for law enforcement agencies, for persons about whom information has been compiled, and for the general public, we granted certiorari. 452 U.S. 937, 101 S.Ct. 3079, 69 L.Ed.2d 951 (1981). We now reverse. II 6 The Freedom of Information Act sets forth a policy of broad disclosure of Government documents in order "to ensure an informed citizenry, vital to the functioning of a democratic society." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 2327, 57 L.Ed.2d 159 (1978); EPA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). Yet Congress realized that legitimate governmental and private interests could be harmed by release of certain types of information and provided nine specific exemptions under which disclosure could be refused. Here we are concerned with Exemption 7, which was intended to prevent premature disclosure of investigatory materials which might be used in a law enforcement action. This provision originally exempted "investigatory files compiled for law enforcement purposes except to the extent available by law to a private party." A sweeping interpretation given the Exemption by some courts permitted the unlimited withholding of files merely by classifying them as investigatory files compiled for law enforcement purposes. As a result, the Exemption underwent a major revision in 1974. As amended, Exemption 7 authorizes disclosure of law enforcement records unless the agency can demonstrate one of six specific harms. The provision now protects 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." 5 U.S.C. § 552(b)(7). 8 The language of the Exemption indicates that judicial review of an asserted Exemption 7 privilege requires a two-part inquiry. First, a requested document must be shown to have been an investigatory record "compiled for law enforcement purposes." If so, the agency must demonstrate that release of the material would have one of the six results specified in the Act.5 9 As the case comes to us, it is agreed that the information withheld by the Bureau was originally compiled for law enforcement purposes. It is also settled that the name check summaries were developed pursuant to a request from the White House for information about certain public personalities and were not compiled for law enforcement purposes. Finally, it is not disputed that if the threshold requirement of Exemption 7 is met if the documents were compiled for law enforcement purposes—the disclosure of such information would be an unwarranted invasion of privacy. The sole question for decision is whether information originally compiled for law enforcement purposes loses its Exemption 7 protection if summarized in a new document not created for law enforcement purposes. III 10 No express answer is provided by the statutory language or by the legislative history. The Court of Appeals resolved the question in favor of Abramson by construing the threshold requirement of Exemption 7 in the following manner. The cover letter to the White House, along with the accompanying summaries and attachments, constituted a "record." Because that "record" was not compiled for law enforcement purposes, the material within it could not qualify for the exemption, regardless of the purpose for which that material was originally gathered and recorded and regardless of the impact that disclosure of such information would produce. The Court of Appeals supported its interpretation by distinguishing between documents and information. "[T]he statutory scheme of the FOIA very clearly indicates that exemptions from disclosure apply only to documents, and not to the use of the information contained in such documents." 212 U.S.App.D.C., at 65, 658 F.2d, at 813.6 A "record" is a "document" and, for the Court of Appeals, the document must be treated as a unit for purposes of deciding whether it was prepared for law enforcement purposes. The threshold requirement for qualifying under Exemption 7 turns on the purpose for which the document sought to be withheld was prepared, not on the purpose for which the material included in the document was collected. The Court of Appeals would apply this rule even when the information for which the exemption is claimed appears in the requested document in the form essentially identical to the original memorialization. 11 The Court of Appeals' view is a tenable construction of Exemption 7, but there is another interpretation, equally plausible on the face of the statute, of the requirement that the record sought to be withheld must have been prepared for law enforcement purposes. If a requested document, such as the one sent to the White House in this case, contains or essentially reproduces all or part of a record that was previously compiled for law enforcement reasons, it is reasonably arguable that the law enforcement record does not lose its exemption by its subsequent inclusion in a document created for a nonexempt purpose. The Court of Appeals itself pointed the way to this alternative construction by indicating that Exemption 7 protected attachments to the name check summaries that were duplicates of original records compiled for law enforcement purposes. Those records would not lose their exemption by being included in a later compilation made for political purposes. Although in this case the duplicate law enforcement records were attached to the name check summaries, the result hardly should be different if all or part of the prior record were quoted verbatim in the new document. That document, even though it may be delivered to another agency for a nonexempt purpose, contains a "record" qualifying for consideration under Exemption 7. 12 The question is whether FOIA permits the same result where the exempt record is not reproduced verbatim but is accurately reflected in summary form. The Court of Appeals would have it that because the FBI summarized the relevant records rather than reproducing them verbatim, the identical information no longer qualifies for the exemption. The originally compiled record and the derivative summary would be treated completely differently although the content of the information is the same and although the reasons for maintaining its confidentiality remain equally strong. We are of the view, however, that the statutory language is reasonably construable to protect that part of an otherwise non-exempt compilation which essentially reproduces and is substantially the equivalent of all or part of an earlier record made for law enforcement uses. Moreover, that construction of the statute rather than the interpretation embraced by the Court of Appeals, more accurately reflects the intention of Congress, is more consistent with the structure of the Act, and more fully serves the purposes of the statute.7 13 FOIA contains no definition of the term "record."8 Throughout the legislative history of the 1974 amendments, Representatives and Senators used interchangeably such terms as "documents," "records," "matters," and "information."9 Furthermore, in determining whether information in a requested record should be released, the Act consistently focuses on the nature of the information and the effects of disclosure. After enumerating the nine exemptions from FOIA, Congress expressly directed that "[a]ny reasonably segregable portion of a record" be "provided to any person requesting such record after deletion of the portions which are exempt. . . ." § 552(b). This provision requires agencies and courts to differentiate among the contents of a document rather than to treat it as an indivisible "record" for FOIA purposes. When a record is requested, it is permissible for an agency to divide the record into parts that are exempt and parts that are not exempt, based on the kind of information contained in the respective parts. 14 The 1974 amendments modified Exemption 7 in two ways. First, by substituting the word "records" for "files," Congress intended for courts 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." NLRB v. Robbins Tire & Rubber Co., 437 U.S., at 229-230, 98 S.Ct., at 2320-2321.10 Second, by enumerating six particular objectives of the Exemption, the amendments required reviewing courts to "loo[k] to the reasons" for allowing withholding of information. Id., at 230, 98 S.Ct., at 2321. The requirement that one of six types of harm must be demonstrated to prevent production of a record compiled for law enforcement purposes was a reaction to a line of cases decided by the Court of Appeals for the District of Columbia Circuit which read the original Exemption 7 as protecting all law enforcement files.11 The amendment requires that the Government "specify some harm in order to claim the exemption" rather than "affording all law enforcement matters a blanket exemption." 120 Cong.Rec. 36626 (1974), 1975 Source Book 413 (statement of Rep. Reid). The enumeration of these categories of undesirable consequences indicates Congress believed the harm of disclosing this type of information would outweigh its benefits. There is nothing to suggest, and no reason for believing, that Congress would have preferred a different outcome simply because the information is now reproduced in a non-law-enforcement record. 15 The Court of Appeals would protect information compiled in a law enforcement record when transferred in original form to another agency for nonexempt purposes but would withdraw that protection if the same information or record is transmitted in slightly different form. In terms of the statutory objectives, this distinction makes little sense.12 If the Court of Appeals is correct that this kind of information should be disclosed, its position leaves an obvious means of qualifying for the exemption transmittal of the law enforcement records intact. Conversely, to the extent that Congress intended information initially gathered in the course of a law enforcement investigation to remain private, the Court of Appeals' decision creates a substantial prospect that this purpose, the very reason for Exemption 7's existence, will no longer be served. IV 16 Neither are we persuaded by the several other arguments Abramson submits in support of the decision below. 17 First, we reject the argument that the legitimate interests in protecting information from disclosure under Exemption 7 are satisfied by other exemptions when a record has been recompiled for a non-law-enforcement purpose. In particular, Abramson submits that Exemption 6 suffices to protect the privacy interest of individuals. Even if this were so with respect to the particular information requested in this case, the threshold inquiry of what constitutes compilation for law enforcement purposes must be considered with regard for all six of the types of harm stemming from disclosure that Congress sought to prevent. Assuming that Exemption 6 provided fully comparable protection against disclosures which would constitute unwarranted invasions of privacy, a questionable proposition itself,13 no such companion provision in FOIA would halt the disclosure of information that might deprive an individual of a fair trial, interrupt a law enforcement investigation, safeguard confidential law enforcement techniques, or even protect the physical well-being of law enforcement personnel. No other provision of FOIA could compensate for the potential disruption in the flow of information to law enforcement agencies by individuals who might be deterred from speaking because of the prospect of disclosure. It is therefore critical that the compiled-for-law-enforcement requirement be construed to avoid the release of information that would produce the undesirable results specified. 18 For much the same reason, the result we reach today is fully consistent with our holding in NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148-154, 95 S.Ct. 1504, 1515-1518, 44 L.Ed.2d 29 (1975), that Exemption 5, § 552(b)(5), an exemption protecting from mandatory disclosure predecisional communications within an agency and other internal documents, does not protect internal advisory communications when incorporated in a final agency decision. The purposes behind Exemption 5, protecting the give-and-take of the decisional process, were not violated by disclosure once an agency chooses expressly to adopt a particular text as its official view. As we have explained above, this cannot be said here. The reasons for an Exemption 7 exemption may well remain intact even though information in a law enforcement record is recompiled in another document for a non-law-enforcement function. 19 The result is also consistent with the oft-repeated caveat that FOIA exemptions are to be narrowly construed, Department of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976). While Congress established that the basic policy of the Act is in favor of disclosure, it recognized the important interests served by the exemptions. We are not asked in this case to expand Exemption 7 to agencies or material not envisioned by Congress: "It is . . . necessary for the very operation of our Government to allow it to keep confidential certain material such as the investigatory files of the Federal Bureau of Investigation." S.Rep.No. 813, 89th Cong., 1st Sess., 3 (1965). Reliance on this principle of narrow construction is particularly unpersuasive in this case where it is conceded that the information as originally compiled is exempt under Exemption 7 and where it is the respondent, not the Government, who urges a formalistic reading of the Act. 20 We are not persuaded that Congress' undeniable concern with possible misuse of governmental information for partisan political activity is the equivalent of a mandate to release any information which might document such activity. Congress did not differentiate between the purposes for which information was requested. NLRB v. Sears Roebuck & Co., supra, at 149, 95 S.Ct., at 1515. Rather, the Act required assessment of the harm produced by disclosure of certain types of information. Once it is established that information was compiled pursuant to a legitimate law enforcement investigation and that disclosure of such information would lead to one of the listed harms, the information is exempt. Congress thus created a scheme of categorical exclusion; it did not invite a judicial weighing of the benefits and evils of disclosure on a case-by-case basis.14 V 21 We therefore find that the construction adopted by the Court of Appeals, while plausible on the face of the statute, lacks support in the legislative history and would frustrate the purposes of Exemption 7. We hold that information initially contained in a record made for law enforcement purposes continues to meet the threshold requirements of Exemption 7 where that recorded information is reproduced or summarized in a new document prepared for a now-law-enforcement purpose. Of course, it is the agency's burden to establish that the requested information originated in a record protected by Exemption 7. The Court of Appeals refused to consider such a showing as a sufficient reason for withholding certain information. The judgment of the Court of Appeals is therefore reversed, and the case is remanded to that court for further proceedings consistent with this opinion. 22 So ordered. 23 Justice BLACKMUN, with whom Justice BRENNAN joins, dissenting. 24 Exemption 7 of the Freedom of Information Act, 5 U.S.C. § 552(b)(7), permits agencies to withhold "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . . . (C) constitute an unwarranted invasion of personal privacy." (Emphasis added.) The Court today holds that this language authorizes petitioner FBI to withhold investigatory records not compiled for law enforcement purposes simply because some information contained in those records was compiled for such purposes. The Court declares that "[o]nce it is established that information was compiled pursuant to a legitimate law enforcement investigation and that disclosure of such information would lead to one of the listed harms [in Exemption 7], the information is exempt." Ante, at 631 (emphasis added). 25 I cannot escape the conclusion that the Court has simply substituted the word "information" for the word "records" in Exemption 7(C). Yet we have earlier recognized that "[t]he Freedom of Information Act deals with 'agency records,' not information in the abstract." Forsham v. Harris, 445 U.S. 169, 185, 100 S.Ct. 978, 987, 63 L.Ed.2d 293 (1980). I agree with Justice O'CONNOR's assessment that the legislative history reveals that Congress chose the term "records," rather than the word "information," advisedly. The Court's unwillingness to give the statutory language its plain meaning requires judges who are evaluating Exemption 7(C) claims to parse agency records and determine whether any piece of information contained in those records was originally compiled for a law enforcement purpose. Because the Court presents no reason, convincing to me, why its deviation from the statutory language is necessary or desirable, I respectfully dissent. 26 Justice O'CONNOR, with whom Justice MARSHALL joins, dissenting. 27 Justice Frankfurter once explained the limits of statutory construction as follows: 28 "[T]he courts are not at large. . . . They are under the constraints imposed by the judicial function in our democratic society. As a matter of verbal recognition certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. . . . A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction. . . . 29 * * * * * 30 [T]he only sure safeguard against crossing the line between adjudication and legislation is an alert recognition of the necessity not to cross it and instinctive, as well as trained, reluctance to do so." Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527, 533, 535 (1947). 31 The Court does not approach this case in that spirit. Instead, it redrafts the statutory phrase "investigatory records compiled for law enforcement purposes" to exempt investigatory records that "were not compiled for law enforcement purposes," ante, at 623 (emphasis added).1 Unfortunately, none of the usual grounds of statutory construction supports the Court's result. First, there is no doubt that if Exemption 7 is given the straightforward interpretation based on its plain language that the Court concedes is both "tenable," ante, at 624, and "plausible," ante, at 631, the name check summaries do not qualify for exemption. Second, the rather sparse legislative history of the Exemption provides, as the Court admits, ante, at 623, "[n]o express answer" regarding the meaning of the Exemption, leaving the Court no reason for overriding the usual presumption that the plain language of a statute controls its construction. Finally, the straightforward interpretation of Exemption 7, rejected by the Court, does not lead to consequences so absurd that one is forced to conclude that Congress could not have meant what it said in the Exemption. 32 Under these circumstances, the Court's rejection of the plain language of the Exemption must be viewed as an effort to perfect the FOIA by judicial alteration. Since reform of legislation is a task constitutionally allocated to Congress, not this Court, I believe the Court today errs. I respectfully dissent. 33 * A. 34 "[S]tatutory construction 'must begin with the language of the statute itself,' and '[a]bsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.' " Bread Political Action Committee v. FEC, 455 U.S. 577, 580, 102 S.Ct. 1235, 1237, 71 L.Ed.2d 432 (1982) (citations omitted). In approaching a statute, moreover, a judge must presume that Congress chose its words with as much care as the judge himself brings to bear on the task of statutory interpretation. I begin, therefore, by focusing attention on the pertinent language of Exemption 7. 35 At issue in this case2 is the meaning of the seven-word phrase Congress used to describe the documents it intended to exempt: "investigatory records compiled for law enforcement purposes." The Exemption's syntax is plain and unambiguous: "records" is twice modified, first, by "investigatory," and then, by "compiled for law enforcement purposes." Congress evidently meant to exempt "records" that are both "investigatory" and "compiled for law enforcement purposes."3 36 Since neither of the parties before this Court contends that the District Court erred in finding that the records at issue, though perhaps "investigatory," were "not compiled for law enforcement purposes," ante, at 623, the case would, at first blush, seem to be over: the documents withheld by the FBI do not fit within the language of the Exemption and, therefore, must be released to the respondent.4 37 The logic of this straightforward result is all the more compelling in light of the canons of construction peculiar to FOIA cases. As we have emphasized before, the enumerated exemptions to the FOIA "[were] explicitly made exclusive," EPA v. Mink, 410 U.S. 73, 79, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973), and "must be narrowly construed." Department of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976) (citations omitted).5 The reason for preferring a narrow construction is simply that " 'the recognized principal purpose of the FOIA requires us to choose that interpretation most favoring disclosure.' " Id., at 366, 96 S.Ct., at 1601, quoting Vaughn v. Rosen, 173 U.S.App.D.C. 187, 193, 523 F.2d 1136, 1142 (1975). Even if it were possible to concoct genuine doubts about the plain meaning of Exemption 7's language, therefore, those doubts would have to be resolved in favor of disclosure. 38 Under the conceded facts of the present case, however, no doubts arise.6 The records at issue were not "compiled for law enforcement purposes." The statutory language thus clearly proclaims that the documents are not exempt from disclosure. As Chief Justice Marshall wrote more than a century and a half ago: "The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction." United States v. Wiltberger, 5 Wheat. 76, 95-96, 5 L.Ed. 37 (1820). B 39 Of course, while it is elementary that the plain language interpretation of a statute enjoys a robust presumption in its favor,7 it is also true that Congress cannot, in every instance, be counted on to have said what it meant or to have meant what it said. Statutes, therefore, "are not to be construed so strictly as to defeat the obvious intention of the legislature." Id., at 95. Thus, a "clearly expressed legislative intention" to the contrary could dislodge the meaning apparent from the plain language of Exemption 7, even though that meaning "must ordinarily be regarded as conclusive," Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980).8 40 The Court, however, rejects the plain language of Exemption 7 without identifying any "obvious" evidence of a "clearly expressed" congressional intention to have Exemption 7 mean something other than what it says.9 In fact, the Court candidly admits that "[n]o express answer is provided . . . by the legislative history," ante, at 623, which explains, perhaps, why the Court's opinion is nearly devoid of references to it. 41 The Court cites the legislative history of the 1974 amendment to Exemption 7 no more than four times during the course of its opinion. None of those citations provides anything like sufficient grounds for displacing the plain meaning of the Exemption.10 In fact, none of the Court's four citations directly addresses the question. In sum, the Exemption's legislative history provides no basis whatever for ignoring the words of the Act.11 C 42 Even without the legislative history on its side, to be sure, the Court might be entitled to reject the plain language of Exemption 7 in order to avoid "patently absurd consequences," United States v. Brown, 333 U.S. 18, 27, 68 S.Ct. 376, 381, 92 L.Ed. 442 (1948), that Congress could not possibly have intended. The Court, however, cannot, and does not, claim that the plain language of Exemption 7 leads to such results, though the Court does level a lesser charge. In the Court's words: 43 "The Court of Appeals would protect information compiled in a law enforcement record when transferred in original form to another agency for nonexempt purposes but would withdraw that protection if the same information or record is transmitted in slightly different form. In terms of the statutory objectives, this distinction makes little sense." Ante, at 628 (footnote omitted). 44 In short, the Court accuses Congress of having arbitrarily drawn the line between exempt and nonexempt materials. 45 Congress, however, ordinarily is free to draw lines without cavil from this Court, so long as it respects the constitutional proprieties. We do not, and should not, make it our business to second-guess the Legislature's judgment when it comes to such matters. Line-drawing, after all, frequently requires arbitrary decisions that cannot sensibly be subjected to judicial review.12 46 "In terms of the statutory objectives," moreover, it is plain that the principal purpose of the FOIA was "to establish a general philosophy of full agency disclosure," S.Rep.No. 813, 89th Cong., 1st Sess., 3 (1965), in order "to permit access to official information long shielded unnecessarily from public view," even if it must come from "unwilling official hands." EPA v. Mink, 410 U.S., at 80, 93 S.Ct., at 832. It scarcely needs to be repeated that Congress' ultimate objective in requiring such disclosure was "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." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 2327, 57 L.Ed.2d 159 (1978) (citations omitted). Clearly, the disclosure of the name check summaries required by the plain language of Exemption 7 comports with this statutory objective, since it mandates the release of documents that the District Court found to have been compiled for political, not "law enforcement," purposes. 47 Unquestionably, of course, Congress' intent in enacting the FOIA was not singlemindedly to require disclosure whatever the costs. Congress realized that, under certain circumstances, the costs of disclosure exceed the benefits. Congress weighed those costs and benefits, and recorded the results of its deliberations in the "clearly delineated statutory language," S.Rep.No. 813, 89th Cong., 1st Sess., 3 (1965), of the FOIA's nine exclusive exemptions. The Senate Committee described the legislative balancing process: "It is not an easy task to balance the opposing interests, but it is not an impossible one either. . . . Success lies in providing a workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest possible disclosure." Ibid. 48 Once having completed the arduous and demanding task of balancing interests, and having recorded the results in the nine enumerated exemptions from the FOIA, Congress then attempted to insulate its product from judicial tampering and to preserve the emphasis on disclosure by admonishing that the "availability of records to the public" is not limited, "except as specifically stated." 5 U.S.C. § 552(c) (1976 ed., Supp.IV) (emphasis added). The Court now presumes to suggest that the balance as struck in Exemption 7 "makes little sense" "[i]n terms of the statutory objectives." Ante, at 628 (footnote omitted). The statutory objectives, however, point in different directions, demanding a balance between the Act's primary focus on disclosure and other, sometimes equally compelling, interests. The particular balance struck by Congress and enshrined in Exemption 7 may be open to attack as ill-advised, but, exactly because it represents a compromise between competing policies, it cannot be said to lead to results so "patently absurd" that a court can only conclude that Congress did not mean what it said. 49 In short, if the Court hopes to support its result on the basis that a straightforward interpretation of the statute "makes little sense," the Court errs, unless, of course, the "sense" to which the Court refers is to be found, not in logic, but in the Court's view of what makes "sense" as a matter of public policy. II 50 To reach its result, the Court assumes that, through inadvertence or inattention, Congress' pen slipped while amending Exemption 7 in 1974. Proceeding on this basis, the Court helpfully undertakes to rewrite the Exemption, substituting for the statutory phrase "investigatory records compiled for law enforcement purposes" something like "records containing investigatory information originally gathered for law enforcement purposes." 51 As the Court is quick to point out, its new creation has advantages. The Court notes that "[t]he reasons for an Exemption 7 exemption" might apply to "information in a law enforcement record [that has been] recompiled in another document for a non-law-enforcement function." Ante, at 630. The Court then suggests that, without its redaction of Exemption 7, no guarantee would exist that some other provision of the FOIA would halt disclosure. For this reason, the Court candidly concludes that "[i]t is therefore critical that the compiled-for-law-enforcement requirement be construed to avoid the release of information that would produce . . . undesirable results." Ibid. Evidently, the Court arrives at this conclusion, not because the language of Exemption 7 requires it, not because the legislative history supports it, not because the statute would have "absurd consequences" otherwise, but rather because "the statesmanship of policy-making . . . wisely suggest[s]" it. Frankfurter, 47 Colum.L.Rev., at 533. 52 It is not the function of this Court, however, to apply the finishing touches needed to perfect legislation. Our job does not extend beyond attempting to fathom what it is that Congress produced, blemished as the Court may perceive that creation to be. Our task is solely to give effect to the intentions, as best they can be determined, of the Congress that enacted the legislation. Absent compelling evidence requiring a contrary conclusion, the best indication of Congress' intent is Congress' own language. Therefore, I dissent. 1 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." 2 Abramson sought the following documents: "—Copies of any and all information contained in [FBI] files showing or indicating the transmittal of any documents or information from the FBI to the White House, or any White House aides, for the years 1969 and 1970, concerning the following individuals: Lowell P. Weicker, Jr.; Thomas J. Meskill; Joseph Duffey; Thomas J. Dodd; Alphonsus J. Donahue; John Lupton; Wallace C. Barnes; and Emilio Q. Daddario. "—Copies of any and all information so transmitted. "—An uncensored copy of the Oct. 6, 1969 letter from J. Edgar Hoover to John D. Ehrlichman by which Mr. Hoover transmits 'memoranda' on several individuals to Mr. Ehrlichman. "—A copy of the original request letter from Mr. Ehrlichman to Mr. Hoover for that data. "—Copies of all data so transmitted by the Oct. 6, 1969 letter from Mr. Hoover to Mr. Ehrlichman. "—A copy of the receipt signed by the recipient at the White House of the Oct. 6, 1969, letter." 212 U.S.App.D.C. 58, 60, 658 F.2d 806, 808 (1980). 3 In his revised request, Abramson sought the following documents: "—All written requests and written records of oral or telephone requests from the White House or any person employed by the White House to the FBI for information about any person who was in 1969, 1970, 1971, 1972, 1973, or 1974 the holder of a federal elective office or a candidate for federal elective office. "—All written replies and records of oral or telephonic replies from the FBI to the White House in response to requests described in paragraph one. "—Any index or indices to requests or replies described in paragraphs one and two." Id., at 61, 658 F.2d, at 809. 4 The District Court did not consider the summaries and attachments separately for Exemption 7(C) purposes. The Court of Appeals was "satisfied that the 'name check' summaries were not compiled for legitimate law enforcement purposes," but was "less sure" of the "attachments," being unable to determine their precise nature or the purposes for which they were originally created. The Court of Appeals stated that if the "attachments" documents were already in existence and a part of the FBI files prior to the White House's "name check" requests, and if these original documents were sent to the White House as initially compiled, without modification, then a determination would have to be made whether these documents meet the threshold requirements of Exemption 7. Thus, the Court of Appeals remanded to the District Court for a finding on whether the "attachments" were the original documents in FBI files and whether they were originally compiled pursuant to a legitimate law enforcement investigation. 5 The Attorney General's Memorandum on the 1974 Amendments to the FOIA 6 (1975) reads the amendments in this manner. Respondent places undue emphasis on this document and the direction to first determine whether a record has been compiled for law enforcement purposes and then examine whether one of the six harms are involved. This is, of course, the prescribed order in which a court should interpret the Exemption. It does not necessarily mean, however, that information admittedly compiled in a law enforcement record loses its exemption when recompiled. The Attorney General's memorandum submits that the test is whether the requested material "reflect[s] or result[s] from investigative efforts" into civil or criminal enforcement matters." Ibid. 6 The Court of Appeals supported this distinction by referring to two of its earlier FOIA decisions. Simpson v. Vance, 208 U.S.App.D.C. 270, 648 F.2d 10 (1980), held that a State Department Biographic Register was not exempt from disclosure even though the information in the Register was extracted from personnel files which may have been exempt under Exemption 6 of FOIA. Lesar v. United States Department of Justice, 204 U.S.App.D.C. 200, 636 F.2d 472 (1980), held that summaries of FBI surveillance records did not lose their exempt status because the underlying original surveillance records from which the summaries were compiled may not have been gathered for legitimate law enforcement purposes. As we understand those cases, however, neither of them is inconsistent with the result we reach today. 7 We would agree with much of Justice O'CONNOR's dissenting opinion if we accepted its premise that the language of the statute is "plain" in the sense that it can reasonably be read only as the dissent would read it. But we do not agree with that premise: "The notion that because the words of a statute are plain, its meaning is also plain, is merely pernicious oversimplification." United States v. Monia, 317 U.S. 424, 431, 63 S.Ct. 409, 412, 87 L.Ed. 376 (1943) (Frankfurter, J., dissenting). Given our view that there is a reasonable alternative construction of Exemption 7, much of Justice O'CONNOR's dissent is rhetorical and beside the point. For our duty then is "to find that interpretation which can most fairly be said to be imbedded in the statute, in the sense of being most harmonious with its scheme and with the general purposes that Congress manifested." NLRB v. Lion Oil Co., 352 U.S. 282, 297, 77 S.Ct. 330, 338, 1 L.Ed.2d 331 (1957) (Frankfurter, J., concurring in part and dissenting in part). 8 While Congress' definition of "records" in the Records Disposal Act and the Presidential Records Act of 1978 was helpful to us in determining that an agency must create or obtain a record before information to which the Government has access can be considered an "agency record," Forsham v. Harris, 445 U.S. 169, 183-184, 100 S.Ct. 978, 986-987, 63 L.Ed.2d 293 (1980), the definition of terms in these Acts does not aid in resolving the issue presented in this case. 9 See, e.g., 120 Cong.Rec. 17033 (1974), 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., 333 (Joint Comm. Print 1975) (hereafter 1975 Source Book) (remarks of Sen. Hart); 120 Cong.Rec. 17034 (1974), 1975 Source Book 335 (remarks of Sen. Kennedy); 120 Cong.Rec. 36626 (1974), 1975 Source Book 413 (remarks of Rep. Reid); 120 Cong.Rec. 36877-36878 (1974), 1975 Source Book 468 (remarks of Sen. R. Byrd); H.R.Conf. Rep. No. 93-1380, p. 13 (1974), 1975 Source Book 230. 10 There is no claim that the "name check" summaries are protected against disclosure in toto because of the presence of some material falling squarely within Exemption 7. 11 Senator Hart, the sponsor of the 1974 amendment, stated specifically that the amendment's purpose was to respond to four decisions of the Court of Appeals for the District of Columbia Circuit which cumulatively held that all material found in an investigatory file compiled for law enforcement purposes was exempt, even if an enforcement proceeding were neither imminent nor likely. Weisberg v. United States Dept. of Justice, 160 U.S.App.D.C. 71, 74, 489 F.2d 1195, 1198 (1973), cert. denied, 416 U.S. 993, 94 S.Ct. 2405, 40 L.Ed.2d 772 (1974); Aspin v. Department of Defense, 160 U.S.App.D.C. 231, 237, 491 F.2d 24, 30 (1973); Ditlow v. Brinegar, 161 U.S.App.D.C. 154, 494 F.2d 1073 (1974); Center for National Policy Review on Race and Urban Issues v. Weinberger, 163 U.S.App.D.C. 368, 502 F.2d 370 (1974). These four cases, in Senator Hart's view, erected a "stone wall" preventing public access to any material in an investigatory file. 120 Cong.Rec. 17033 (1974), 1975 Source Book 332. See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 227-229, 98 S.Ct. 2311, 2319-2320, 57 L.Ed.2d 159 (1978). The Conference Report on the 1974 amendment similarly states that the amendment was designed to communicate Congress' disapproval of these court decisions. H.R.Conf.Rep.No.93-1380, at 12, 1975 Source Book 229. Because the disapproved decisions cut far more broadly into the Act than the present issue, we cannot infer that Congress intended all subsidiary questions concerning Exemption 7's scope to be resolved against the Government. 12 Information transmitted for a non-law-enforcement purpose may well still be used in an ongoing investigation. Moreover, by compromising the confidentiality of information gathered for law enforcement purposes, the Court of Appeals' decision could result in restricting the flow of essential information to the Government. Deputy Attorney General Schmults stated before the Second Circuit Judicial Conference (May 9, 1981): "The risk of disclosure of FBI records has made private persons, nonfederal law enforcement officials, and informants reticent about providing vital information. Many informants have actually stopped cooperating with the FBI, for example, because they feared that their identities would be disclosed under the Act." As quoted in Kennedy, Foreword: Is the Pendulum Swinging Away from Freedom of Information?, 16 Harv.Civ.Rights-Civ.Lib.L.Rev. 311, 315 (1981). See FOIA Update 1 (Dept. of Justice, Sept. 1981) ("[E]xperiences of the FBI and DEA indicate that there is a widespread perception among confidential information sources that federal investigators cannot fully guarantee the confidentiality of information because of FOIA"). The Drug Enforcement Administration claims that 40% of FOIA requests come from convicted felons, many of whom are seeking information with which to identify the informants who helped to convict them. Freedom of Information Act Oversight, Hearings before a Subcommittee of the House Committee on Government Operations, 97th Cong., 1st Sess., 165 (1981) (statement of Jonathan Rose, Dept. of Justice); see also U.S. Dept. of Justice, Attorney General's Task Force on Violent Crime, Final Report 32 (1981). The Court has previously recognized that the purposes of the exemptions do not disappear when information is incorporated in a new document or otherwise put to a different use. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 166, 95 S.Ct. 1504, 1524, 44 L.Ed.2d 29 (1975) (Document protected by Exemption 7 does not become discloseable solely because it is referred to in a final agency opinion; "reasons underlying Congress' decision to protect investigatory files [remain] applicable"). 13 Exemption 6 protects against disclosure of information which would constitute a "clearly unwarranted" invasion of privacy. Exemption 7 does not require that the harm to privacy be "clearly" unwarranted. The distinction is meaningful. As we noted in Department of Air Force v. Rose, 425 U.S. 352, 379, n. 16, 96 S.Ct. 1592, 1607, n. 16, 48 L.Ed.2d 11 (1976), the Conference Committee dropped the "clearly" in response to a Presidential request, 120 Cong.Rec. 33158-33159 (1974), 1975 Source Book 368-372 (letters between President Ford and Sen. Kennedy); 120 Cong.Rec. 34162-34163 (1974), 1975 Source Book 377-380 (letters between President Ford and Cong. Moorhead) and the bill was enacted as reported by the Conference Committee, 88 Stat. 1563. Thus, even with respect to Exemption 7(C), it should not be assumed that Exemption 6 would provide overlapping protection. 14 To be sure, the rule crafted by the Court of Appeals might deter the interagency transfer of information initially gathered for law enforcement purposes, but it should be remembered that FOIA is legislation directed at securing public access to information, not an Act intended to interdict the flow of information among Government agencies. 1 Because the Government did not challenge in this Court or in the Court of Appeals the finding of the District Court that the name check summaries at issue had not been compiled for law enforcement purposes, the Court properly assumes the validity of that finding. The District Court explained its ruling as follows: "The document at issue concerns information requested by and transmitted to the Nixon White House concerning eleven individuals. Each of these eleven individuals has been prominently associated with liberal causes and/or has been outspoken in their opposition to the war in Indochina that was being waged by this nation at that time. . . . "The defendants contend that the White House 'name check' requests qualify as records compiled for law enforcement purposes because the White House has special security and appointment functions. At no point in their pleadings do the defendants relate these broad and general duties to the individuals about whom information was requested from the FBI. Thus, there has been absolutely no showing that these particular records were compiled for law enforcement purposes. Accordingly, the defendants have failed to meet their burden, and summary judgment will be granted in favor of the plaintiff on this point." App. to Pet. for Cert. 27a. 2 The Court rephrases the "sole question for decision" as "whether information originally compiled for law enforcement purposes loses its Exemption 7 protection if summarized in a new document not created for law enforcement purposes." Ante, at 623. The question presented by this case, however, is simply whether the contested documents are "investigatory records compiled for law enforcement purposes" within the meaning of Exemption 7. 3 Strictly speaking, the Exemption is narrower than stated in text, since the Act also provides that "[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," 5 U.S.C. § 552(b). In effect, then, Exemption 7 shields only those "reasonably segregable portion[s]" of "records" that are both "investigatory" and "compiled for law enforcement purposes." 4 The Court claims "[n]o express answer" to the question presented by the case "is provided by the statutory language," ante, at 623. Apparently, the Court's assertion is intended to state the Court's conclusions that the language of the statute does not mean what it says and that, therefore, a straightforward reading of the statute is "formalistic," ante, at 621. The statutory language does provide an "express answer," though not one to the Court's liking. 5 Courts frequently refer to "the oft-repeated caveat that FOIA exemptions are to be narrowly construed," ante, at 630. E.g., Founding Church of Scientology of Washington, D. C., Inc. v. Bell, 195 U.S.App.D.C. 363, 367-368, 603 F.2d 945, 949-950 (1979) ("[t]he legislative history of the Act and the 1974 amendments to it support a narrow construction of the exemptions"); New England Medical Center Hospital v. NLRB, 548 F.2d 377, 384 (CA1 1976) (" 'disclosure, not secrecy, is the dominant objective of the Act,' and . . . exemptions are to be 'narrowly construed' " (citations omitted)); Charlotte-Mecklenburg Hospital Authority v. Perry, 571 F.2d 195, 200, n. 15 (CA4 1978) ("Exemptions in the FOIA are to be 'narrowly construed,' with all doubts resolved in 'favoring disclosure' " (citations omitted)); Cox v. United States Dept. of Justice, 576 F.2d 1302, 1305 (CA8 1978) ("The exemptions provided by subsection (b) 'must be narrowly construed' " (citations omitted)). The Act itself emphasizes that it "does not authorize withholding of information or limit the availability of records to the public, except as specifically stated. . . ." 5 U.S.C. § 552(c) (1976 ed., Supp.IV) (emphasis added). Moreover, the legislative histories of the Act and of the 1974 amendments dictate a narrow construction of the exemptions to the FOIA. See, e.g., S.Rep.No.813, 89th Cong., 1st Sess., 3 (1965) (the FOIA was enacted "to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language" (emphasis added)); S.Rep.No.93-854, p. 6 (1974), 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., 158 (Joint Comm. Print 1975) (hereafter cited as Source Book). 6 According to the Court, the phrase "investigatory records compiled" might have been intended to mean something like "investigatory information gathered." The Court, of course, cannot claim that the ordinary, everyday meanings of the words "records" and "compiled" are ambiguous. Instead, as Justice Blackmun suggests, ante, at 632, "the Court has simply substituted the word 'information' for the word 'records' in Exemption 7(C)." Notably, the Court does not attempt to cite cases interpreting the word "record" as used in the FOIA to refer to information apart from the particular tangible forms in which that information is recorded. In fact, this Court itself has said that the "[FOIA] deals with 'agency records,' not information in the abstract." Forsham v. Harris, 445 U.S. 169, 185, 100 S.Ct. 978, 987, 63 L.Ed.2d 293 (1980). Surely, for example, a complete summary in different words, no matter how accurate, of all the information contained in an agency record would not satisfy an FOIA request for that record. 7 See, e.g., TVA v. Hill, 437 U.S. 153, 184, n. 29, 98 S.Ct. 2279, 2296, n. 29, 57 L.Ed.2d 117 (1978) ("[w]hen 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") (BURGER, C. J.). 8 The English practice, by contrast, excludes external evidence from the process of statutory construction. Under the classical English approach, "[i]t was permissible to consider what the law was before the statute, what 'mischief' the statute was meant to remedy, and what the statute actually said," but "it was not permissible to refer to the debates in Parliament for light on what the statute meant, nor to the changes which were made in the original bill before it became an act." T. Plucknett, A Concise History of the Common Law 335 (5th ed. 1956). This "wooden English doctrine" of excluding consideration of legislative history has been rejected by this Court "since the days of Marshall," as a "pernicious oversimplification," United States v. Monia, 317 U.S. 424, 431-432, 63 S.Ct. 409, 412-413, 87 L.Ed. 376 (1943) (Frankfurter, J., dissenting). 9 The Court does suggest, in effect, that Congress loosely drafted the statute, and intended to refer to "information" when it wrote "records." In support of its position, the Court cites instances in which a few Members of Congress, in the heat of floor discussions and debates, seemed to use the terms "documents," "records," "matters," and "information" rather freely. Ante, at 625-626, and n. 9. Because these discussions did not focus on the distinction created by the Court's construction of Exemption 7, they hardly can be considered to be the "clearly expressed legislative intention to the contrary," Bread Political Action Committee v. FEC, 455 U.S. 577, 580, 102 S.Ct. 1235, 1238, 71 L.Ed.2d 432 (1982), required to overcome the presumption in favor of the plain language of a statute. 10 To see how little support those citations provide for the Court's position, it is only necessary to examine them. First, as noted in n. 9, supra, the Court cites the legislative history to show that some Members of Congress, in the heat of debate over the wisdom of the Exemption, used terms such as "documents," "records," "matters," and "information" interchangeably. Ante, at 625-626, and n. 9. Second, the Court quotes a Congressman's statement that the Exemption requires the Government to specify some harm before the Government can successfully resist disclosure. Ante, at 627. Third, the Court cites the legislative history to show that Exemption 7 was enacted to override decisions of the Court of Appeals for the District of Columbia Circuit, which had expansively interpreted the Exemption's predecessor. Ante, at 627, and n. 11. And finally, the Court cites correspondence between President Ford and Members of Congress supporting the view that the protection of Exemption 6 does not fully overlap the protection of Exemption 7. Ante, at 629-630, n. 13. In short, none of these citations directly supports the Court's result. The legislative history of the 1974 amendment to Exemption 7 is summarized in NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 226-234, 98 S.Ct. 2311, 2319-2323, 57 L.Ed.2d 159 (1978). 11 Significantly, however, the legislative history of the 1974 amendment shows that Congress was aware of specific instances of alleged misconduct by the FBI and hoped the more liberal disclosure mandated by the amendment would discourage such incidents. See, e.g., 120 Cong.Rec. 17039 (1974), Source Book 348 (remarks of Sen. Weicker); 120 Cong.Rec. 36866-36867 (1974), Source Book 440-441 (remarks of Sen. Kennedy); 120 Cong.Rec. 36872 (1974), Source Book 453 (remarks of Sen. Hart). 12 Moreover, the Court is too quick to find Congress' distinction to "mak[e] little sense." In fact, whatever the merits of the line Congress adopted, it is comprehensible. To understand why, one need realize only that a summary often provides as much information about the individual who summarizes as it does about the material summarized. The summaries of the opinions of this Court carried in the media, for example, frequently provide a perspective, not only on the work of the Court, but also on the perceptions and judgment of the reporters and their editors. Photocopies, on the other hand, indicate nothing about the purposes and perceptions of the persons responsible for their creation. Any significance a photocopy may have derives exclusively from its content and not from the process of its creation. Indeed, the Government usually satisfies an FOIA request by releasing a photocopy while retaining the original. A photocopy, moreover, inevitably discloses the entire original that it duplicates, while a summary discloses its sources only in part. Thus, it is not true that the distinction Congress drew "makes little sense." A rational Congress could have thought that a summary is likely to provide sufficient insight into the purposes of its creators and requesters to justify its disclosure under the FOIA, if it was "compiled" for other than "law enforcement purposes." The same Congress, furthermore, could have concluded that a photocopy, which can never convey anything other than the entire contents of the original document, should not be disclosed if the original is exempt from disclosure. Of course, there is no evidence that Congress thought about this distinction, and Congress plainly could not have considered the distinction as applied to the facts of the present case. The point, however, is only that the line drawn by the language of the statute does not lead to patently absurd consequences. Whether that distinction is well advised as a matter of sound policy is, of course, entirely another matter—and not for this Court.

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